Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector Selby v University of New South Wales [2013] NSWIRComm 20
• Hearing dates: 14 March 2013
• Decision date: 21 March 2013
• Jurisdiction: Industrial Court of NSW
• Before: Haylen J

Decision

(a) the defendant, the University of New South Wales, is found guilty of a breach of

s 8(2) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter No IRC 1268 of 2011, to which the defendant entered a plea of guilty;

(b) the defendant is fined the sum of $100,000 with half that amount to be paid to the prosecutor by way of moiety;

(c) by consent of the parties, the costs incurred by the prosecutor up to the 19 September 2012 shall be paid by the defendant in the agreed sum of $35,000;

(d) the remaining costs of the prosecutor relating to the guilty plea are to be paid by the defendant in a sum as agreed or, as assessed.

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(2) - two charges laid - s 8(1) charge withdrawn during contested proceedings and guilty plea entered in relation to Amended Application for Order - students under care of University taken on field trip using a Zodiac vessel - life jackets not required to be worn - students sit on buoyancy tubes and not within boat - driver loses control of boat during sharp turn - three students flung from Zodiac into the water - Zodiac swings and briefly comes out of water returning with a loud thud - student injured and required assistance to stay afloat and return to the boat - risk obvious and simple steps only required to address risk - serious breach established - general and specific deterrence - subjective factors considered - application under s 10A Crimes (Sentencing Procedure) Act 1999 declined - penalty imposed
• Cases Cited: Inspector McGrath v Edmen Recruiting Pty Ltd [2012] NSWIRComm 108
• Category: Principal judgment
• Parties: Inspector Dean Selby (Prosecutor); University of New South Wales (Defendant)
• Representation: Mr Reitano of counsel - Prosecutor; Mr Magee of counsel - Defendant; Criminal Law Practice, Legal Group; WorkCover Authority of NSW (Prosecutor); Bartier Perry (Defendant)
• File Number(s): IRC 1268 of 2011

Judgment

1 The University of New South Wales ("the defendant") has entered a plea of guilty to a breach of s 8(2) of the Occupational Heath and Safety Act 2000 ("the Act"). That breach arose from the use of a Zodiac vessel around Sydney harbour for the purposes of a field day trip for students and staff from the Faculty of Science and the School of Biological Earth and Environmental Services ("the BEES school"). In July 2009, during the course of the field day, a student, Ms Gall, was thrown from the Zodiac while it was making a sharp turn. The student suffered a number of injuries and was hospitalised as a result.

2 Originally, the defendant was charged with a breach of both s 8(1) and s 8(2) of the Act arising from the same incident: initially, the defendant entered not guilty pleas. A ten-day hearing commenced in mid-September 2012 but on the fourth day, due to issues that had arisen during the course of the trial, the parties agreed that the matters be adjourned and it was agreed that the following day's hearing also be adjourned and resume the following Monday. On that day a further adjournment was granted and the remaining hearing days vacated. At the end of October 2012 the matter was listed again for Directions and on that occasion the prosecutor withdrew the charge brought under s 8(1) of the Act: the defendant consented to that course and the parties agreed there would be no order as to costs. On the same day the prosecutor handed up in Court an Amended Application for Order in relation to the s 8(2) breach. The defendant thereupon entered a plea of guilty to that amended charge.

3 The amended charge particularised the risk as being the risk of falling out of a vessel travelling on water and drowning or alternatively, being struck by the vessel's hull or propeller. The acts or omissions of the defendant were particularised as follows:

• the defendant failed to ensure by instruction, warning or training, that passengers on the Zodiac were required to be seated in seats or on the floor and not on the buoyancy tubes;
• the defendant failed to ensure, by instruction, warning and training that passengers on the Zodiac wore personal flotation devices such as life jackets while travelling on the Zodiac.

It was alleged that, as a result of these acts or omissions by the defendant, a student, Ms Gall, was placed at risk of injury.

4 It is to be noted at this point that the Amended Application for Order resulted in a reduction in the number of particulars of the alleged breach. The Amended Application for Order particularised the risk in the same way as the original Application and the formal matters also remain unaltered. The two factual particulars specified in the Amended Application appeared in the same form as the Amended Application for Order. The Amended Application, however, removed eight further particulars that appeared in the original Application for Order. Those particulars referred to: a failure to ensure that the owner's manual was kept on the Zodiac and was easily accessible; a failure to ensure that the maximum number of passengers did not exceed the lower number the defendant had previously determined for safe use; a failure to conduct a safety briefing or induction identifying risks and emergency procedures relating to travelling on the Zodiac; failure to produce a written safety procedure to passengers; a failure to train passengers in relation to the use of safety equipment, including life jackets and other items; a failure to train employees in the safe operation of the Zodiac and in particular the failure to train employees in ensuring passengers were not seated on the buoyancy tubes of the Zodiac while it was in motion; the failure to clearly identify who was responsible for supervision of passengers on the Zodiac so that the supervisor could ensure that a safety briefing was conducted before the Zodiac was used; and, a failure to ensure a specific risk assessment dealing with all foreseeable risks concerning the use of the Zodiac on the date nominated was conducted before the Zodiac was used that day and specifically, identifying risks associated with sitting on the buoyancy tubes, overloading and failing to conduct a safety briefing. As can be seen there was some overlap in the extended particulars while others may be categorised as descending into the minutia of the breach.

5 At the sentencing hearing the prosecutor tendered an Agreed Statement of Facts together with numerous supporting documents. Those documents included the following: an owner's manual for a Zodiac PRO600; 15 photographs of the Zodiac involved in the accident; a pre-departure Zodiac checklist; safe operating procedure for the Zodiac; safe work procedures for the Zodiac dated September 2009; a boat induction course for the Zodiac dated September 2009; training material for theory course dated March 2010; safety management system and associated documents for the Zodiac; and, a prior convictions record. The prior convictions record recorded a 2005 incident dealt with in 2007 before the Chief Industrial Magistrate for a breach of s 8(2) of the Act where a fine of $20,625 was imposed. The Agreed Statement of Facts appears as an annexure to this judgment.

6 The evidence for the defendant was provided through an affidavit of Mr Lance Islip, an occupational health and safety co-ordinator for the Faculty of Science at the University. A large number of documents relating to the defendant's safety systems prior to and following this accident as well as dealing with the defendant's approach to safety were placed before the Court through Mr Islip. In his position as an occupational health and safety co-ordinator, Mr Islip provided advice and assistance to the Faculty and its Schools on safety matters, developed and implemented safety policies and procedures at the Faculty and its Schools and co-ordinated and provided safety training and services.

7 Mr Islip provided a detailed description of the BEES School and the nature of its operation. He provided a detailed account of the University's safety systems prior to the accident and in so doing dealt with the role of the University's occupational health and safety unit where six full-time and three part-time safety co-ordinators worked for the University. It was noted that two Schools also employed a full-time safety officer and five Schools had part-time safety officers. The defendant had developed a safety management system based on AS/NZS:4804.2001 OHSMS - "General Guidelines on Principles Systems and Supporting Technique" and it also utilised WorkCover's NSW Self-Insurer's occupational health and safety model requirements. It was noted that the University had been a self-insurer since 1983 and that WorkCover had conducted audits of the safety management system in relation to the University's self-insurance licence since 2002. The University had satisfied audits since 2003 and continually strived to improve its safety practices. In addition, there was a University safety policy and a safety consultation procedure. A description was provided of the manner in which those consultation and communication systems operated. Documents were provided to demonstrate the detail of various safety requirements of the defendant, including risk assessments, plant and equipment and safety training.

8 Amongst the documents placed before the Court by the defendant was a letter directed to the Court by the Dean of the Faculty of Science, Professor Merlin Crossley. In that letter the University again acknowledged that more could have been done to minimise the risks associated with the day and expressing regret that those endeavours did not occur prior to and on the day of the accident. The University expressed its sorrow that Ms Gall was injured and that other students were placed at risk. Attention was again directed to the many steps taken by the University to address the risks that were exposed on the day of the accident. While accepting that the incident was regrettable, the University had learned from it and had taken positive steps to address the safety issues raised and was said to be now operating with a greater commitment to workplace safety and was doing so with enhanced safety procedures.

9 Mr Islip stated that the University had co-operated with the prosecutor in relation to this accident. It had assisted in WorkCover's investigation, had responded to the improvement and prohibition notices, attended with the prosecutor at the workplace inspections, had made staff and students available for interviews and responded promptly to all enquiries. In addition, the University immediately undertook an investigation into the accident and completed a report. It was noted that the report identified having passengers sitting on the floor of the boat at planing speeds in rough water or during sharp turns and the provision of more comfortable lifejackets to encourage them to be worn while on board. Immediate actions discussed included the compulsory wearing of approved lifejackets for all boat users, purchasing cushions for seating and to ban sitting on the gunwales during planing speeds in rough water or when turning sharply. These changes were immediately implemented. In addition, safe work procedures were developed for the Zodiac and drivers were trained in those procedures.

10 The boat induction course was updated and improved. Other initiatives included the following: a theory course and specific induction for drivers of the Zodiac was developed and implemented and a risk assessment form for boating was prepared. Limitations were placed on those who could drive a Zodiac so that only those with a coxswain's licence were eligible. It was noted that this was beyond the requirements of maritime legislation. The defendant also increased the supervised driving hours from 10 to 15 before a person would be permitted to drive the vessel without a supervisor. The defendant worked with NSW Maritime over a number of months to prepare a safety management system regarding the Zodiac and hired an employee over a period of approximately three months to work exclusively on producing a safety management system. Other documents were developed dealing with operation and emergency procedures, quick reference guides for operational procedures, emergency procedures, maintenance checklists and boating log books for the Zodiac.

11 The boating system is now publicly available on the University internet. It was noted that NSW Maritime conducted an audit of the University's safety management system for the Zodiac as this system appeared to be the first system developed by any University in New South Wales and was approved by the Regulator. Direct costs incurred by the University in responding to the accident exceed $36,000, excluding the cost of a boating officer. A full-time boating officer was appointed to the school in June 2011 and the duties were outlined to the Court. The current annual cost of the scientific boating officer is in excess of $78,000 plus approximately 29 per cent on-costs. Initiatives undertaken by the boating officer were provided in evidence. These included: sharing boating safety management systems with other Universities and organisations and attending information sessions held by the Australian Maritime Safety Authority and NSW Maritime and the provision of training and assessment for boat users. The School now has approximately 40 registered boat skippers and crew with only registered persons permitted to drive University vessels. Since mid-2011 the boating officer had provided 42 boating assessments or inductions and emergency drill refreshers for the School and affiliates.

12 Mr Islip had conducted presentations on rigid hull inflatables based on lessons learned from the accident and gave details of occasions when that had occurred. He had engaged in talks with representatives from the CSIRO and University of Queensland concerning the accident and provided further information and access to University documents in relation to that matter. Sharing the lessons with others was also undertaken by Professor Suthers, a Professor at the School. Mr Islip stated that the University remained committed to boating safety and safety generally and that the accident had caused it to take all the steps outlined in the evidence to improve safety and was continuing in those endeavours. The defendant was also working towards developing similar comprehensive boating safety management systems for other vessels it operated and was making these developments of the boating system available to other Universities and organisations.

DELIBERATION

13 In considering the object seriousness of this breach by the defendant, the assessment takes place in the context of a maximum fine of $825,000. The legislature has specifically addressed the seriousness of second or subsequent offences by substantially increasing the maximum penalty available to the Court.

14 While conceding that the breach was serious, counsel for the defendant also submitted that, having regard to the extensive safety systems already in place prior to the accident and the numerous actions taken following the accident, this breach should fall within the lower range of penalties. Counsel for the prosecutor rejected this analysis. While it was conceded that this was not a case falling within the most serious category of offences, nevertheless, it was described as a serious breach of the Act. The guilty plea entered by the defendant accepted that the risk was that of falling out of the Zodiac and drowning or alternatively, being struck by the vessel's hull or propeller. That bald statement of the charge, however, does not fully reflect the seriousness of the risk as demonstrated by this accident. While it has long been accepted that the focus of breach proceedings should remain on the risk, the accident is evidence of the nature and seriousness of the risk. So it is in the present case. The Agreed Statement of Facts graphically depicts the circumstances leading to a sharp turn being taken by the Zodiac, the driver losing control, the front three passengers falling backwards into the water off the buoyancy tubes because of the force being experienced, the Zodiac briefly lifting out of the water and the thud of the hull as it hit an object in the water. Ms Gall was thrown into the water and was seen to be struggling to stay afloat: a fellow student saw her predicament and dived into the water and returned her to the Zodiac.

15 There is much force in the prosecutor's submissions as to the objective seriousness of the offence. While it can be accepted that the offence might be regarded as far more serious if the defendant did not have any systems in place in relation to the use of boats it has, nevertheless, accepted that there were gaps in its safety systems and that it could have done more to address the risks that were shown to exist in the use of the Zodiac on the day of the accident. The Zodiac in use on this day was to carry a significant number of people when its normal use involved a fewer number of people engaged in diving activities. While the University considered many issues, including Maritime Regulations, it did not possess a copy of the Zodiac owner's manual and operations booklet. At the very least those documents would have alerted the defendant to the need to ensure that passengers remained seated and to avoid sharp turns whereby passengers may be ejected from the boat.

16 The manufacturer's operating instructions acknowledged that sitting on the buoyancy tubes may be comfortable when the Zodiac was at rest or at low speeds and provided the passengers used the grab lines. However, at planing speeds, in rough water or during sharp turns "all passengers should position themselves in seats (standard or option) or on the floor." In addition, the operating instructions warned against making sharp turns at speed as passengers may be ejected from the boat. In view of the defendant's other detailed safety systems, it would appear highly likely that had these warnings, appearing in the operating manual, come to its attention it would have, at least, considered those warnings and determined how to address them. The simple way to address them has indeed now been adopted by the defendant as part of its safe operating rules for the use of Zodiacs.

17 In addition, the seriousness of the breach is highlighted where the risks are obvious and the steps to address them are simple and straightforward. This is such a case. The many factors relied upon by the defendant on this issue carries with it the potential for allowing subjective factors to overwhelm the analysis of the objective seriousness of the offence. All the factors identified by the defendant have relevance in assessing the degree of specific deterrence that should be reflected in the penalty and in addressing general subjective factors: in the present case, instructing passengers to be seated within the Zodiac and not to ride on the buoyancy tubes and to be instructed to wear lifejackets were simple steps to address the risk of drowning. The conclusion is inevitable that this breach was a serious breach although the Court accepts the concession made by the prosecutor that it is not a breach that falls within the most serious class of offences under the Act.

18 In relation to deterrence, counsel for the defendant submitted that the various actions taken to address the risks involved in using the Zodiac and especially the actions taken by the defendant to warn the wider community of these risks based on its own experience and how the risks could best be addressed should result in general deterrence be given little weight in arriving at an appropriate penalty. The Court is unable to accept that submission. The many steps taken by the defendant following this accident are undoubtedly praiseworthy and it should receive credit for those actions where appropriate: those matters should be considered in favour of the defendant especially when considering subjective factors. The Full Court has, on numerous occasions, spoken of the importance of general deterrence in the setting on an appropriate penalty. The significance of general deterrence in this case is that it provides another example of a well-resourced employer spending considerable time and money in preparing and promulgating safety rules, yet finding its system inadequate in an important aspect. The message for all employers from this type of case is that they cannot simply sit back after producing numerous safety rules and that they need to recognise that the obligation to ensure safety carries with it the requirement to keep under review and audit existing safety rules and to be prepared to amend safety rules without the need to await a workplace injury before doing so.

19 While general deterrence will play a significant role in the setting of an appropriate penalty in this matter, there is force in the defendant's submissions that specific deterrence should play a much-reduced role in the setting of the penalty. Here, the defendant had numerous safety rules for its workplace having regard to the large variety of activities it undertakes and the large number of students under its care. This was not a case of the defendant demonstrating an absence of attention to safety rules or demonstrating a lack of care about safety. The numerous steps taken following this accident has thoroughly addressed the risks particularised, however, the defendant does have a prior conviction. That conviction arose some time ago in very different circumstances involving inappropriately guarded equipment. These two convictions, while representing a good overall safety record, simply underlines the fact that the most detailed safety rules can fail and that the defendant should be encouraged to continually scrutinise those rules to ensure their effectiveness.

20 There are a variety of subjective matters to be considered. The defendant submits that its guilty plea should be regarded as an early plea warranting the full extent of the discount available in such circumstances. The prosecutor rightly points out that fully contested proceedings ran for some days before the Court and by consent, were adjourned. Hearing days were vacated and ultimately the prosecutor withdrew the s 8(1) breach and amended its Application for Order in the s 8(2) matter to reduce the number of particulars. The circumstances that led to the adjournment of the proceedings do not require further analysis but this is not a case where it can be concluded that the prosecutor over-reached itself by commencing both proceedings and was, in the final analysis, required to recognise difficulties with the prosecution by substantially reducing the particulars. It might be observed that the defendant could have pleaded to the two particulars in the s 8(2) case at the outset and denied the remaining particulars. Having made those observations, however, it is appropriate for the Court to acknowledge the utilitarian value of the plea entered to the Amended Application for Order and the undoubted Court time saved and inconvenience to witnesses avoided by the taking of that course. In all the circumstances it is appropriate that a 15 per cent discount be provided on the final penalty to be imposed on the defendant.

21 The defendant is a large and well-regarded institution in this State. The evidence discloses a large number of employees engaged and a very large number of students enrolled and under the care of the defendant. In its lengthy operation this is only the second breach of safety rules that has brought it before the Courts and the defendant, apart from these two blemishes, is entitled to be assessed as a good corporate citizen with a good safety record. The defendant operated under extensive safety rules and after this accident, as already mentioned and as reflected in the Agreed Statement of Facts, it took a number of important steps to address the risk associated with the use of the Zodiac and in particular, the addition of the boating officer and the steps taken to bring to the attention of a wider audience the safety lessons it had learned arising from this accident warrants special mention. The evidence demonstrates the defendant's contrition and remorse, including the attention paid to Ms Gall after the accident and during her hospitalisation as well as within her course. In addition, the defendant took responsibility for the payment of medical and hospital expenses incurred by Ms Gall. The Court also accepts that the defendant, on the evidence, apart from conducting its own exhaustive investigations after this accident, co-operated with the WorkCover investigation. All of these matters are to be taken into account in mitigating the extent of the penalty to be imposed.

22 Lastly, the defendant submitted that this was a case appropriate for the application of the provisions of s 10A of the Crimes (Sentencing Procedure) Act 1990 ("Sentencing Act") and that, while convicting the defendant, the proceedings may be disposed of without imposing any further penalty. In Inspector McGrath v Edmen Recruiting Pty Ltd [2012] NSWIRComm 108, the Court recently considered the approach to s 10 applications in strict liability offences. While accepting that the s 10 discretion is wide-ranging, nevertheless, the granting of such an application has remained rare in this jurisdiction.

23 In support of this application, most of the factors as to the nature of the defendant were relied upon as well as its attention to safety as demonstrated by its numerous safety rules in place over many years. Particular emphasis was placed upon the fact that the defendant is an educational institution that is a not-for-profit organisation largely funded by public money. Those attributes of the defendant have already been recognised but the Court is of the view that the seriousness of this breach, as discussed above, results in the conclusion that it is inappropriate that the matter be dealt with pursuant to s 10A of the Sentencing Act. That application is therefore refused.

ORDERS

24 In light of the foregoing reasons, the Court makes the following orders:

(a) the defendant, the University of New South Wales, is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter No IRC 1268 of 2011, to which the defendant entered a plea of guilty;

(b) the defendant is fined the sum of $100,000 with half that amount to be paid to the prosecutor by way of moiety;

(c) by consent of the parties, the costs incurred by the prosecutor up to the 19 September 2012 shall be paid by the defendant in the agreed sum of $35,000;

(d) the remaining costs of the prosecutor relating to the guilty plea are to be paid by the defendant in a sum as agreed or, as assessed.

ANNEXURE

AGREED STATEMENT OF FACTS

1. At all material times, the Prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and empowered under section 106(1)(c) of the Act to institute proceedings in this matter.

2. At all material times the University of New South Wales was a body corporate constituted by the University of New South Wales Act 1989 (NSW) (UNSW Act), whose principal place of business is UNSW Kensington Campus, Kensington, Sydney in the State of New South Wales ("the defendant").

THE DEFENDANT

3. The defendant is a body corporate constituted by the UNSW Act.

4. The defendant was originally incorporated by Act of the Parliament of NSW in 1949, but its character and idea can be traced back to the formation of the Sydney Mechanics Institute in 1843.

5. Under the UNSW Act a Council is the governing authority of the defendant. The Council is made up of a minimum of 11 and a maximum of 22 internal and external members that represent the defendant. Currently the Council has 15 members. A Chancellor is appointed as the chair of the Council.

6. The Council has ultimate responsibility for providing a safe and healthy working environment for employees and students. It has the responsibility of providing resources to Faculties and Divisions to assist them to implement all OHS policies. Some members of the Council are elected by employees, students, or graduates. Others are appointed by the State Minister for Education and Training or by the Council itself.

7. The Vice-Chancellor is the Principal Executive Officer of the defendant and is responsible for the overall direction of corporate planning, budget activities and external relations. Subject to the direction of the Council, the Vice-Chancellor manages and supervises the administrative, financial and other activities of the defendant.

8. The object of the defendant is the promotion, within the limits of the University's resources, of scholarship, research, free inquiry, the interaction of research and teaching, and academic excellence. The defendant's principal functions for promotion of it's object are: providing facilities for education and research to university standards; the encouragement of the dissemination, advancement, development and application of knowledge informed by free inquiry; the provision of courses of study and instruction across a range of fields and the carrying out of research to meet community needs; the participation in public discourse, the conferring of degrees and the awarding of diplomas certificates and other awards; the provision of teaching and learning. The defendant also exercises commercial functions. The defendant is substantially a publicly funded institution.

9. The main campus of the defendant is located at Kensington in New South Wales with sub-campuses located at Randwick, Paddington and Coogee in New South Wales and in Canberra in the Australian Capital Territory.

10. The defendant has eight faculties - Arts and Social Sciences; Built Environment; Engineering; Law; Medicine; Science; the Australian School of Business; and the College of Fine Arts plus UNSW Canberra at ADFA - which offer an extensive range of undergraduate, postgraduate and research programs.

11. The defendant has 56 Schools.

12. The defendant offers more than 300 undergraduate and 600 postgraduate programs. The defendant has almost 100 research, teaching program and community centres.

13. The defendant has approximately 46,000 students and over 5,000 academic, professional and technical employees.

14. The faculty and school associated with the incident on the 31 July 2009 is the Faculty of Science and the School of Biological Earth and Environmental Sciences ('BEES School').

15. As at 31 July 2009 the defendant employed Mr Lance Islip in its Human Resources and OHS Development Unit as the OHS Coordinator for the Faculty of Science. Mr Adam Janssen was employed as the defendant's OHS Manager.

16. As at 31 July 2009, David Cohen was employed as the Head of School for the BEES School. Mr Cohen had overall responsibility for the BEES School. Mr David Hair was the Safety Officer of the School of BEES. Mr Michael de Mol was employed by the School of BEES to, amongst other things, maintain the School's boats.

17. Dr Emma Johnston is a full time lecturer employed by the defendant in the BEES School. Dr Johnson instigated the field trip taking place on 31 July 2009 as it was students in her laboratory group (Lab Group) who were involved in the trip. Dr Katherine Dafforn was a research assistant employed by the defendant in the BEES School and was the nominated Field Trip Leader for the Lab Day on 31 July 2009.

18. As at 31 July 2009 Mr Martin Hing was employed by the defendant as a casual Research Assistant within the BEES School. Prior to taking on this role Mr Hing had completed undergraduate studies with the defendant but had not yet formally graduated. Mr Hing had commenced his role as a Research Assistant in the BEES School in July 2009 approximately 2 to 3 weeks prior to the incident occurring. Mr Hing held a General Boating Licence, Senior First Aid certificate and a CPR certificate.

19. On 31 July 2009, Ms Mailie Gall was a student completing studies in a Masters of Philosophy course conducted by the defendant in the BEES School.

THE VESSEL/PLANT

20. Due to the nature of the courses offered within the BEES School, it is a requirement that some of the employees and students conduct fieldwork activities. In order to undertake field work employees and students need to utilize the vessels owned by the defendant.

21. As at 31 July 2009 the defendant owned several vessels that were used by the BEES School including a Zodiac Pro 600, registration number 53951, that was involved in the incident on the 31 July 2009. The Zodiac was purchased new by the defendant in April 2000 and was registered on 27 April 2000. The Zodiac is a 5.85 metre Rigid Hull Inflatable Boat (RHIB) with a central steering console (jockey console) with a 60 Hp 4 stroke Suzuki outboard engine. The Zodiac had a manufacturer's capacity plate that specified a maximum capacity of 16 persons.

22. The defendant routinely had the Zodiac maintained by "GoodTimes Marine" of 2 Toorak Avenue, Taren Point NSW 2229 (ABN: 32 124 734 612). Prior to the incident the Zodiac was last serviced on 26 February 2009.

23. The Zodiac is an innately stable vessel as a result of its relatively wide beam, the deep "Vee" bottom of the rigid hull and the two substantial buoyancy tubes. Zodiac states on its website:

Reassuring stability

The stability of a Zodiac is due to its large buoyancy tubes which give it a low centre of gravity so that, under normal circumstances, they are practically impossible to capsize. This quality, which is essential to safe confident navigating, is especially appreciated by divers, fishermen and those that require a lightweight tender

24. Operating the vessels including the Zodiac within the BEES School included Academic employees, Masters, PhD and Honour students.

THE INCIDENT

25. Prior to and on 31 July 2009, the defendant checked the weather conditions for 31 July 2009 to ensure the suitability of the weather and conditions for the Lab day.

26. On 31 July 2009 students and employees of the BEES School had organised to undertake a field trip. The students involved in the field trip were undertaking honours and post graduate studies in the BEES School. The field trip was intended to introduce new Honour's students to other members of the Lab Group and introduce those students to various field sites within Sydney Harbour so as to assist students with their studies. It was intended to visit sites at Darling Harbour, Balmain and Gore Bay. It was also intended to visit the new research facility at Sydney Institute of Marine Science located at Chowder Bay and attend a talk being held there.

27. At approximately 9.00 am on 31 July 2009 students and employees of the defendant involved in the field trip met at the Kensington Campus, Biological Science Building, Research Student Office. Students and employees then randomly split into three groups and drove in three separate vehicles to the BEES School boatshed at King Street.

28. At the King Street boat shed two vessels on trailers - the Zodiac and a Stabi Craft were checked to ensure they were in good working order prior to one being attached to each four - wheel drive.

29. The defendant ensured that a sufficient number of life jackets for each of the passengers and skipper were placed on the Zodiac on the day.

30. The two vehicles with the attached trailer and vessel were driven to Rose Bay launching ramp.

31. At Rose Bay launching ramp all participants met prior to a short discussion about the route. It was decided they would not drive together but the vessels would follow each other at some distance. They would head to Darling Harbour (Cockle Bay) and meet at Chowder Bay at a certain time after observing the field sites.

32. At the time conditions on the water were very good - there was little wind, no swell, it was quite flat, sunshine and visibility was excellent. Boat traffic was minimal. Both vessels were launched into the water from the boat ramp. The Zodiac was launched first and was being driven by Mr Hing. Mr Hing drove the Zodiac alongside the wharf and the passengers boarded the vessel.

33. Mr Hing had driven the defendants boats, including the Zodiac, about once a week for 1 ½ years during his honours course

34. All passengers were informed to sit on top of the inflatable buoyancy tubes and hold on to the rope that ran along the top of the tubes. Four passengers were positioned evenly along both sides of the inflatable buoyancy tubes to keep the vessel evenly balanced. Mr Hing positioned on a centre jockey consol informed the passengers where to sit, what to hold onto and where the life jackets were located.

35. The defendant, through Mr. Hing, made passengers aware of the location and ability to wear the life jackets on the Zodaic, if they wished to wear lifejackets. The passengers were given the choice to wear lifejackets.

36. The passengers who boarded the Zodiac were all honours students and included Ms Gall, Mr Brett Mulder, Ms Sarah Graham, Mr Matthew Teston, Mr Cian Foster-Thorpe, Ms Laura Ryan, Ms Suzanna Evans and Mr Damon Bolton, totalling nine people on board.

37. The remaining participants boarded the Stabi Craft. The Stabi Craft was being driven by Dr Dafforn. The passengers on the Stabi Craft were Dr Emma Johnston, Professor Graeme Clarke, as well as PhD students Mr Andrew McKinley, Ms Katelyn Edge and Ms Louise McKenzie.

38. The Zodiac left first in a northwesterly direction going past Felix Bay and heading towards Garden Island. It was shortly overtaken by the Stabi Craft. The Stabi Craft continued to go directly to Darling Harbour (Cockle Bay).

39. As the Zodiac was heading towards Darling Harbour, in the vicinity of the Sydney Opera House, a vessel that required assistance, due to engine failure, waved them down. Mr Hing provided assistance and towed this vessel back to the headland of Rose Bay.

40. The Zodiac turned around and again headed back in a westerly direction, with the intention of going to Darling Harbour. As the Zodiac came around Millers Point at the entrance to Darling Harbour and was heading in a southerly direction towards Cockle Bay, Mr Hing observed the Stabi Craft going in the opposite direction exiting Darling Harbour. Mr Hing slowed the Zodiac and asked the passengers if they wanted to see Darling Harbour or turn back to catch up with the other vessel. Passenger's who heard the request agreed to follow the other vessel.

41. Mr Hing then increased the speed of the Zodiac and commenced to turn the Zodiac to the right. The Zodiac was travelling at an estimated speed of 10 - 12 knots in a sign posted 8-knot zone. Mr Hing intended to do a normal turn. There was a lot of resistance on the steering wheel due to the front of the vessel being low in the water. Mr Hing applied a lot of force, more than normal, on the wheel to turn the Zodiac. As the Zodiac turned it stayed flat in the water and did not turn (roll) smoothly, which caused extra force against the side of the vessel. The turn ended up being a sharp turn.

42. As the Zodiac was turning Ms Gall, Mr Teston and Ms Graham, the front three passengers sitting on the left side of the vessel, due to the unexpected force on the Zodiac turning, fell backwards off the buoyancy tubes into the water. The passengers on the right side were propelled forward into the vessel. With the sudden loss of weight on the left side of the Zodiac resistance left the steering wheel and the boat rolled to the right. As the boat rolled to the right Mr Hing lost control of the Zodiac, the bow of the vessel dug deeper into the water causing the tail of the vessel to whip around to its left. The motor was heard to rev momentarily as it lifted out of the water.

43. As the stern of the Zodiac re-entered the water a thud on the hull of the vessel was heard and Mr Hing and Mr Bolton realised somebody had been hit. Mr Hing turned the Zodiac around to view the passengers in the water and immediately saw that Ms Gall was struggling to stay afloat and needed assistance. Mr Bolton jumped into the water to assist her and swam her back to the Zodiac. Mr Mulder, aboard the Zodiac, pulled Ms Gall into the vessel.

44. The injuries to Ms Gall were obvious and Mr Bolton applied first aid, using a piece of clothing (shirt) as a tourniquet/bandage to try and prevent additional bleeding. Mr Teston and Ms Graham swam back to the Zodiac and were pulled into the vessel.

45. The Water Police (WP43) who were coming out of Cockle Bay in a Northerly direction towards the Zodiac witnessed the incident and assisted immediately. Senior Sgt Malone boarded the Zodiac and administered first aid. Senior Sgt Malone directed the operator of the Zodiac to go to the Sydney Water Police base at Balmain approximately 500 metres away. Sergeant Michael Crews requested ambulance assistance. When the Zodiac arrived at the wharf of the Sydney Water Police base, Senior Constable Andrews boarded the Zodiac and assisted with first aid until ambulance paramedics arrived.

46. Paramedics treated Ms Gall and conveyed her to the Royal Prince Alfred Hospital. The other students and employees involved in the incident were offered counselling through the Universities Employees Assistance Scheme.

47. On the 11 August 2009 the defendant arranged for 'Goodtime Marine' to inspect the Zodiac for damage, conduct a water test and check throttle response. No running, performance or safety issues were found. However it was noted that when the motor was not trimmed correctly or when there was too much weight in the bow the result was 'Bow Steering' (inadvertently steering to the left or right).

48. On 15 September 2009 the NSW Water Police issued the Zodiac operator, Mr Hing with a Boating Infringement Notice, 'OPERATE RECREATIONAL VESSEL NEGLIGENTLY CAUSING GREVIOUS BODILY HARM' $500.

SYSTEMS OF WORK PRIOR TO THE INCIDENT

49. The defendant did not have an Owner's (Operating) Manual for the Zodiac. The University had a Motor Operating Manual for the Zodiac but not an Owner's Manual. The defendant purchased the Owner's Manual for the Zodiac after the incident occurred.

50. The Owner's Manual details important information in regards to operating the Zodiac including operating and safety precautions, warnings, safety recommendations, operating instructions and details on weight distribution, adjusting the motor, handling, trouble shooting and maintenance. The defendant was not aware of several safety warnings outlined in the Owner's Manual including a warning concerning sitting on the buoyancy tubes whilst the Zodiac is in motion; and warnings about the wearing of life jackets and the need to always have a copy of the Owner's Manual with the Zodiac.

51. An operating instruction detailed as a WARNING in the Owner's Manual at Vol 1 at page 11 states that:

... PASSENGERS REMAIN SEATED: Sitting on the buoyancy tubes may be comfortable may be comfortable at rest or at low speeds provided your passengers use the grab line. At planning speeds, in rough water or during sharp turns, all passengers should position themselves in seats (standard or option) or on the floor.

At the time of the incident when the Zodiac was turning all passengers aboard the Zodiac were sitting on top of the buoyancy tubes (other than the Skipper, Mr Hing). It was standard operating practice for both students and employees to always sit on top of the buoyancy tubes whilst on the Zodiac. Students and employees were not made aware of the hazards associated with sitting on the buoyancy tubes and were not instructed not to sit on the buoyancy tubes.

52. Mr Hing and Dr Dafforn were not informed, instructed or trained to ensure passengers, employees and students including themselves did not sit on the inflatable buoyancy tubes of the Zodiac when in the Zodiac was at planning speeds, in rough water or during sharp turns.

53. An operating instruction detailed as a WARNING in the Owner's Manual in Vol 1 at page 11 states:

USE PERSONAL FLOTATION DEVICE (PFD): PFD are required equipment. Wear them.

At the time of the incident students and employees were not wearing personal flotation devices whilst aboard the Zodiac. Employees and students had not been informed that life jackets must be worn whilst on the Zodiac as indicated in the Owner's Manual. It was common practice for employees and students of the defendant not to wear life jackets whilst being aboard the Zodiac. The Zodiac was carrying sufficient life jackets for the number of people on the Zodiac, the passengers were advised that the Zodiac was carrying life jackets and were given the choice as to whether or not to wear a life jacket.

54. The defendant was, on 31 July 2009, acting in compliance with maritime requirements regarding life jackets pursuant to the Marine Safety (General) Regulations 2009 (see clauses 85 to 89 as at 31 July 2009). The regulations provided at the relevant time:

(a) under clause 85 that lifejackets must be worn on canoes and kayaks;

(b) under clause 86 that lifejackets must be worn when crossing a coastal bar;

(c) under clause 87 that lifejackets must be worn on personal watercraft (jet skis); and

(d) under clause 88 that lifejackets must be worn by windsurfers.

The defendant's conduct in not requiring the wearing of life jackets would also have been in compliance with the regulations as they are presently drafted today.

SYSTEMS OF WORK SUBSEQUENT TO THE INCIDENT

55. The defendant undertook an investigation into the incident and completed an Investigation Report. The matters considered by the report relevantly included:

Responses to Incident to be considered:

Have passengers sit on the floor of the boat at planing speeds, in rough water or during sharp turns.

Provide more comfortable life jackets so as to encourage their wearing whilst on board.

Immediate actions discussed:

Make the wearing of approved lifejackets compulsory for all boat users.

Purchase cushions for seating.

Ban sitting on the gunwales during planing speeds, in rough water or when turning sharply.

56. Following the investigation into the incident, the defendant immediately implemented changes to the procedures and practices relevant to the conduct of field trips on waterways. These included:

(a) purchasing new life jackets that were not bulky and discouraging to wear;

(b) a requirement that a lifejacket be worn at all times by all persons onboard the vessel unless the master decides there is a good reason not to, such as circumstances where the person is wearing a wetsuit that provides buoyancy or the vessel is made fast to a structure; and

(c) sitting on the buoyancy tubes was banned and cushions for sitting on the floor were purchased.

57. Further, safe work procedures were developed for the Zodiac. The University developed and implemented a specific Safe Work Procedure for the Zodiac (copy attached). All drivers of the Zodiac were trained in those procedures.

58. The University updated and improved its boat induction course (copy attached). A theory course and specific induction for drivers of the Zodiac was developed and implemented (copy attached). The training course specifically deals with steering weight distribution, planning and falling overboard. A propeller guard was also installed on the Zodiac.

59. The University limited those who can drive the Zodiac to only those who hold a coxswain licence. This is above the requirements of maritime legislation. The University increased the supervised driving hours from 10 to 15 before a person can drive a vessel unsupervised.

60. Further, the defendant worked with NSW Maritime over a number of months to prepare a Safety Management System with respect to the Zodiac.

61. The defendant hired an employee for a period of approximately 3 months to work exclusively on producing the Safety Management System.

62. The defendant developed, amongst other things, the following documents:

(a) Safety Management System for the Zodiac;

(b) Operations and Emergency Procedures for the Zodiac;

(c) Quick Reference Guide for Operational Procedures for the Zodiac;

(d) Quick Reference Guide for Emergency Procedures for the Zodiac;

(e) Maintenance Checklists; and

(f) Boating Log Book, copies of which are attached.

Other matters

63. The Prosecutor brought two charges against the defendant. The first charge, in proceedings 1267 of 2011, was withdrawn by the Prosecutor.

64. At the time of withdrawing the first charge, the Prosecutor amended the second charge in these proceedings. The amended charge is different to the charge originally brought against the University.

65. The defendant immediately pleaded guilty to the amended charge and did so at the earliest available opportunity.

66. The defendant, its officers and employees did everything required of it and them in the course of the WorkCover investigation.

67. The defendant has one prior conviction arising from April 2007 in respect of the College of Fine Arts.

Decision last updated: 21 March 2013