On 14 February 2024, the defendant, a local government authority, was sentenced in the Southport Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 ('the Act'), having failed to comply with its primary health and safety duty. The failure exposed an individual to a risk of death or serious injury.

The defendant owned and operated an aquatic centre ('the Centre'), which is open to the public, subject to payment of an entry fee. The Centre comprises a number of swimming pools and a diving pool, which includes a diving tower with diving platforms at heights of 3, 5, 7.5 and 10 metres. The diving tower was commonly used for training and competition by diving associations. At the time of offending, which was between 11 December 2020 – 4 January 2021, patrons could pay an extra fee and be issued with a wristband which allowed them to access the diving tower.

The charges stem from an incident on 3 January 2021, when a 4-year-old girl fell headfirst from the 3 metre diving platform onto the concrete below, suffering serious injuries including fractures to her skull and vertebrae. The child’s family (including her parents and two sisters aged six and one) had paid a "general entry" fee to access the pool, which did not include the additional payment to access the diving tower. They were not issued any wristbands upon entry. However, the 6-year-old and 4-year-old had seen others jumping off the diving tower and wanted to try it. Their father walked them up to the 3 metre platform, where the lifeguard who was controlling jumping assured him that his daughters were fine to jump. Accordingly, their father returned to the pool deck to wait for them to jump. The 4-year-old jumped off twice, but while waiting on top of the platform for her third jump, fell through the guardrail onto the concrete below.

The subsequent investigation revealed that, although the defendant had conducted a risk assessment of the Centre, it:

• had not undertaken a specific risk assessment in relation to the use of the diving facilities by members of the public (including young children);
• did not have in place sufficient edge protection to guard against the risk of falling from height (including, for example, a barrier which could not be climbed or passed through);
• failed to provide sufficient supervision of the crowds waiting on the stairs and platform; and
• did not routinely check wristbands, meaning patrons who had not purchased 'dive board entry' still accessed the diving tower.

Following the incident, the diving tower was closed to the general public, and the defendant implemented many other safety measures, including drafting a lifeguard manual, completing a risk assessment of the tower for dive club usage, and ultimately installing permanent edge protection (by way of vertical bars) for the diving tower.

In sentencing the defendant, Magistrate White referred to the offence and elements, noting that health and safety duties are positive and require a duty holder to search for, detect and eliminate, so far as reasonably practicable, risks to health and safety. Her Honour took into account the agreed statement of facts and, in mitigation, that the defendant had no previous convictions, and had cooperated with the investigators and entered a plea of guilty, consequently saving the time and cost of a trial, and that it had also taken steps prior to seek to ensure the safety of patrons, and following the incident immediately closed the diving tower and took many other steps. Her Honour also noted that the defendant expressed regret, but emphasised that the nature of the injuries were very serious and she had to take that into account, and that she had also taken into account the Victim Impact Statement provided by the injured child’s parents, concluding that the lives of their whole family had been turned upside down through effectively no fault of theirs.

Her Honour convicted the defendant and ordered a fine of $125,000, and exercised her discretion to not record a conviction.

OWHSP contact: enquiries@owhsp.qld.gov.au