On 11 May 2023, a diving company and its sole director were fined a total of $110,000 in the Sandgate Magistrates Court for offences under section 22 of the Safety and Recreation Water Activities Act 2011 (‘the Act’) having failed to comply with their health and safety duties pursuant to sections 16 and 17 of the Act.

The defendant company operated a business providing recreational diving activities. On 29 December 2020, the diver contacted the sole director to book a recreational dive to Flinders Reef. The director offered the diver a spot on a boat the following day and took payment for the dive but did not provide information about what would occur at the dive site.

On 30 December 2020, the diver arrived at Caloundra Boat Club and met with a worker of the defendant company and other divers. They boarded a vessel and departed for the dive site. There was no safety briefing or information provided regarding the hazards or the current at the dive site, nor was information provided regarding emergency plans or first aid equipment.

At the dive site, the diver entered the water without having had her diving certification sighted or confirmed. She was not allocated a dive buddy and there was no one out of the water on the vessel acting as an “out-of-water lookout” and rescuer. During the dive, the diver started to run low on air. She was unable to gain the attention of another diver and ascended to the surface. At this time, she started to panic, trying to breathe, and was inhaling water. The diver was assisted at the surface by crew members of another vessel. They returned her to the defendant company’s vessel prior to the other divers surfacing another 10-15 minutes later.

The defendant company pleaded guilty to the charge, acknowledging it owed a duty to ensure the health and safety of the divers and failed to discharge that duty because it did not ensure:

• one person was out of the water as lookout/rescuer;
• a head count was conducted;
• a dive safety log was kept;
• a documented safety plan was prepared;
• the diver was assessed as competent prior to the dive;
• the divers were provided with a dive buddy;
• a dive site risk assessment was conducted;
• emergency signalling equipment was provided;
• a dive plan was prepared;
• divers were monitored for distress or panic; and
• divers were provided information instruction and supervision in relation to the risks.

The director pleaded guilty acknowledging that he had failed to exercise due diligence or take reasonable steps to ensure the company had and used these processes and resources.

In sentencing the defendants, Magistrate Hackett had regard to the purpose of the Act and considered that the need to ensure the safety of those participating in water activities was paramount. His Honour acknowledged that the State had a previous history of diving incidents resulting in fatalities.  

Having outlined the facts of the offending, his Honour considered that there was a serious failure on part of both defendants to exercise their duties. His Honour considered that the measures which ought to have been implemented were of “common sense” and “basic”. His Honour remarked that safety steps were to be implemented into each and every dive and that the impact of failing to do so was evident in this case. His Honour acknowledged that the consequences could have been more serious.

His Honour took into account the impact of the offending on the diver and acknowledged that she had ongoing panic attacks and had difficulty pursuing an activity she once loved and gained pleasure from.

His Honour accepted the company and its director had taken steps to ensure their duties were complied with and that the offending was not borne of “callous indifference.” However, he commented the conduct was a substantial departure from the standard of care owed and carried with it an obvious risk of loss of life or injury. It was outlined there was a need for deterrence.

Submissions were made in relation to the financial capacity of the company and his Honour indicated those had been taken into account. Having regard to all these matters, his Honour fined the defendant company $100,000 and the director $10,000 along with costs, all of which were referred to SPER. Given that neither the company nor its director had any prior history of offending, his Honour exercised his discretion and did not record convictions.

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