I've been weighing up whether to write on this case as it is older and I do have a potential conflict (disclosure at the bottom) however I find that two elements which are crucial for businesses to understand were present in sentencing, so I have elected to cover it. The two takeaways from this case are;
Out of State codes of practice were used against a business in trial and sentencing - suggesting that if SafeWork NSW haven't released a code of practice for it, but another state has - it should be referred to as if it is a NSW code of practice.
This is the first case I have covered where a business was punished with criminal laws for something they did to a person who was not a worker but instead a customer/visitor.
The Court Matter
Millart and Notland were companies that jointly ran Byron Bay Dive Centre (BBDC) from 2003 to 2017 before they were bought out by Byron Bay Adventure Company Pty Ltd.
The Victim
The victim was Mrs Teresa Swarbrick who was snorkelling with her Husband Alan, her daugher Amy, her son James and Amy's friend Taneesha. She was 47 years old at the time of the incident.
The incident
On 8 April 2015 Mrs Swarbrick, her family and a group of others (12 in total) were booked to undertake a drift snorkelling tour at Julian Rocks with Byron Bay Dive. The group had been booked to undertake the tour on the previous Sunday, but that tour had been cancelled due to unfavourable weather conditions. Even on the day of the trip, it was delayed 3 hours due to choppy conditions.
Mrs Swarbrick was given what BBDC called a "Risk Identification Form" (likely a modified version of a PADI/SSI SCUBA Declaration which is common for dive shops. Just a disclaimer and medical questionnaire). On this form Mrs Swarbrick stated she had experienced "breathlessness, heart disease, taking medication, and that she had had any illness or operation within the last month". She was questioned by Elizabeth Riley if she believed that she disclosed medical conditions would case her any problems in undertaking drift snorkelling. Mrs Swarbrick responded that her medical conditions were under control. There were no further discussions regarding Ms Swarbrick’s medical conditions.
Ms Riley did not advise the captain of the Cape Runner (the vessel that BBDC used to go to Julian Rocks), Mr Dalton (the owner), or any other employee of Byron Bay Dive of Mrs Swarbrick’s medical condition. This was in breach of Byron Bay Dive’s Safety Management System (SMS).
Byron Bay Dive did not prevent Mrs Swarbrick from taking part in the tour, or require additional control measures such as undertaking extra supervision of her or requiring her to use a personal floatation device (PFD) such as a life jacket or pool noodle.
After swimming for 2-3 minutes Mrs Swarbrick began to struggle, telling her husband. ‘I’m in trouble. I can’t swim against the current’. Mr Swarbrick took hold of her and told her not to panic and that he would pull her along. Mrs Swarbrick continued swimming but was struggling and became breathless.
Both Mr Swarbrick and another swimmer signalled for a pick-up and yelled for help. The vessel had already left to go pick up some snorkelers who were struggling in the current so the skipper of another vessel (known as the Sports Dive) who was a good Samaritan asked the group to bring Mrs Swarbrick to him and he would run them to shore. The group couldn't because of the strong current.
The good samaratin threw a mermaid line (a buoyant rope with a buoy attached) to the group. He could not use the vessel’s life ring because it was stored on the underside of the canopy at the stern and he could not leave the controls of the vessel because he was steering it away from the rocks. When he saw the group holding the mermaid line, he put the vessel in reverse. He saw one of the group signalling distress because the towing of Mrs Swarbrick caused her head to go underwater a number of times. Mr Rullin radioed the captain of Wanda (another nearby vessel), Glenn Sanders for assistance.
Mr Dalton manoeuvred Cape Runner alongside the group and Mrs Swarbrick was lifted aboard. By this time she was unconscious. Mr Dalton commenced Cardio Pulmonary Resuscitation (CPR). Mr Sanders and one of the snorkellers continued CPR while Mr Dalton drove the vessel back to The Pass. An ambulance was called and met the Cape Runner at the beach.
Mrs Swarbrick was pronounced dead shortly after arriving at Byron Bay Hospital at 4.22pm. The autopsy report stated the cause of death as ‘presumed drowning’.
Failings of the PCBU
All PCBU's have an obligation to Workers and other persons at the workplace. This includes customers. For instance, if a Woolworths Manager notified Woolworths of a 'rickety' shelf, and they did not fix it. And I remove something heavy from that shelf, causing it to topple over and kill me. Woolworths are now on the hook for a Category 2, if not Category 1 WHS Crime (and probably a civil lawsuit as well).
These obligations are made clear in the Work Health and Safety Act 2011 (NSW), s 19.
Additionally, the offenders and prosecutor accepted that the following documents were available at the time of the incident;
Australian Standard AS/NZS 229.3.2003 Occupational diving operations Part 3 Recreational Industry diving and snorkelling operations (2011)
Snorkel Safety – A guide for workers (Office of Industrial Relations Workplace Health and Safety Queensland) (2014)
Still to this day there is no Code of Practice for SCUBA diving in NSW despite four recreational dive centres existing within a 1 hour drive of Lismore - let alone how many exist along the seaboard between the South Coast and Tweed regions. Despite that lack of guidance from SafeWork - the court upheld that because a code of practice relevant to the offenders industry existed elsewhere in Australia, it should have been followed. This is interesting as rules around Silica are changing and Queensland has what I would call the most comprehensive code of practice regarding silica.
It was revealed throughout proceedings that not only did BBDC fail to follow its own SMS (which were designed based on the Australian Standard) but the staff were not following internal policies about notifying management of potential risks divers/snorkellers notified them of.
The offenders could have required Ms Swarbrick to use a noodle or to wear a life jacket. These options were explained to her, but not required by the offenders. These measures could have been implemented at no cost. The use of those devices may have alleviated her panic, but would probably not have reduced the exertion required to swim against the current.
Penalties
The offenders exposed a visitor/customer of their workplace to a risk of death. For this they were fined $80,000 each (dropped to $60,000 each due to their plea of guilty).
That is the penalty the companies paid, $120,000 all up.
The penalties for others are that for a period of at least 9 months Mr Dalton was psychologically incapable of running another Snorkelling trip due to mental health issues which is completely understandable.
The penalty for the family is that a husband, daughter and son not only lost their beloved family member, but they will always have the memory of their death burned into their mind as they witnessed their mother drown.
The penalty for other workers who did inadequate screening is the guilt they will likely always carry with them for failing to do their job properly which resulted in someone's death.
Take away for businesses
Your WHS policies are not there to make you look good. Following them is what makes you look good. Never having your company in court is what makes you look good.
This case sets precedent that if a COP (Code of Practice) for your industry exists interstate, but not in NSW - you should be following it anyway.
You owe just as much care, if not more care, to customers and visitors as you do workers.
Disclosure of potential conflict
I have dived and/or instructed with many recreational dive shops as I was a professional diver (mainly in Technical Diving >60 metres) until 2022 including working with the Tweed Shire Council as a Diver in 2020. I have been on a recreational dive to Julian Rocks with Byron Bay Dive Centre in 2021.