Details of successful prosecution against E209772

Incident description

On Tuesday 17 February 2015 a 23 year old female holidaying from the UK, died during a recreational introductory scuba dive ('resort dive') at Blue Pearl Bay, Hayman Island.

The defendant company held duties under s. 16 of the Safety in Recreational Waters Activities Act 2011. It provided recreational water activities, including during the course of 3 day and 3 night sail, dive and snorkel charters on a sailing catamaran. It employed two dive instructors, a diving supervisor and other personnel. The defendant had provided recreational scuba activities since 2004 and before that commercial diving operations and charter boats. At times it had operated up to 7 vessels including 4 as dive vessels. Since 2010 it has operated 2 vessels conducting introductory for approximately 60 divers a week. It had operated without significant incident and had a documented Safety Management System (SMS) setting out the Code of Practice and PADI policies and procedures. An instructor swimming backwards and visually observing divers in a group was the control measure the defendant used to prevent separation. Generally the skipper and tender driver were lookouts.

On Tuesday 17 February 2015 the vessel set sail from Abell Point Marina and sailed to Blue Pearl Bay located on the western side of Hayman Island.

On board were 34 people comprising 29 passengers and 5 crew. Appropriate snorkel/dive briefings were given. In particular, the Resort Dive Briefing was conducted appropriately and an instructor who explained the use of the SCUBA gear and gave a demonstration of a Buoyancy Compensation Device (BCD), including inflating and deflating it, use and recovery of the regulator and clearing the mask, what the divers were likely to see and that she would swim backwards and communicate by hand signals. The information provided included that the instructor would control the buoyancy of the introductory divers in the water as required.

At approximately 3.35 pm the vessel moored at Blue Pearl Bay in a good shallow water environment allowing resort divers to perform shallow water skill requirements specified by PADI, and then participate in a supervised dive.

Three resort divers and the instructor were taken by tender close to shore and entered the water.

The instructor was a current PADI certified Open Water Scuba Instructor and employee of the defendant, and held all qualifications necessary to supervise and conduct introductory dives.

She took them through skills requirements specified in the PADI Discover Scuba Diving Program Instructor Guide, namely, practising clearing a mask, clearing a regulator and recovering it. The resort divers did not practice inflation and deflation of the BCD as provided for in the PADI Discover Scuba Diving Program Instructor Guide.

After practicing those skills the Instructor led the three on an introductory dive.

The instructor swimming backwards led so she could observe the 3 resort divers. One had trouble equalising. The instructor decided to abort that diver's dive and took her to the surface to be collected by the diving tender. The two other resort divers waited for the instructor and looked at some coral and fish close to them.

The instructor returned and resumed swimming backwards. She glanced around to observe their direction of travel. When she looked back she could no longer see the 23 year old female. She had apparently ascended to the surface, remained there for approximately 30 seconds, yelled for help, then descended to the ocean floor. She was not observed by anybody on the vessel.

Another dive vessel was anchored nearby. Its deckhand saw the resort diver surface and raised the alarm. The defendant's tender, ferrying snorkelers to the snorkel area, was about 20-30 metres from where the diver surfaced. It moved to where the deckhand indicated as did the other vessel's tender. They saw no bubbles on the surface. From the diver being observed on the surface to the first rescue diver entering the water was some three minutes. On recovery the scuba tank had plenty of air and equipment was in good order.

Court result

The defendant failed to comply with its duty pursuant to s.16 of the Safety in Recreational Waters Activities Act 2011 in that it:

• by its employee failed to conduct practical training with the resort diver in inflation and deflation of her BCD as specified in the PADI Instructor Guide;
• by its employee failed to employ an adequate system for ensuring that the resort diver did not become separated from the dive group, such as the use of linked arms;
• failed to document and enforce a system of refresher training to ensure that its employees complied with the PADI Instructor Guide; and
• failed to document and enforce a system requiring the linkage of arms in low visibility conditions.

The defendant pleaded guilty in the Proserpine Magistrates Court on 17 March, 2017 to breaching s. 22 of the Safety in Recreational Waters Activities Act 2011, having failed to meet its health and safety duties and was sentenced.

Magistrate Simon Young fined the defendant $160 000 and ordered professional and court costs totaling $1089.40. No conviction was recorded.

In reaching a decision, the magistrate found the company had a documented safety management system but it was not adequately supervised or enforced. The magistrate saw resort diving as a high risk activity in a hostile environment and resort divers were inexperienced and reliant upon the company for health and safety.

In deciding penalty, Magistrate Young noted as a consequence of this incident, the defendant no longer conducts scuba diving of any variety and took into account the defendant had not been prosecuted previously for any health and safety breach, co-operated with the investigation and entered an early plea of guilty.

Considerations for prevention

(commentary under this heading is not part of the court's decision)

Persons conducting a business or undertaking providing recreational water activities of Scuba diving for novices divers and Resort Diving need to appreciate it is a high risk activity where there is a high exposure to the risk of drowning. Duty holders should apply a risk management approach to ensure the selection of suitable control measures and ensure they strictly comply with the Safety in Recreational Waters Activities Act 2011; the Safety in Recreational Waters Activities Regulations 2011 and the Recreational Diving Recreational Technical Diving and Snorkelling Code of Practice 2011.

Risk management involves identifying the hazards, evaluating the consequences and likelihood of harm that may result from the hazard, deciding and implementing control measures to prevent or minimise the level of the risk from the hazard and monitoring the effectiveness of the control measures to ensure they remain working correctly.

When deciding and implementing control measures associated with the risk of death or serious injury, duty holders should consider:

• Work Health and Safety Act 2011
• Safety in Recreational Waters Activities Act 2011(PDF)
• Safety in Recreational Waters Activities Regulations 2011(PDF)
• The Recreational Diving Recreational Technical Diving and Snorkelling Code of Practice 2018 (PDF, 0.61 MB)

Details