Huckleberry Australia Pty Ltd v Aaron John Guilfoyle
[2023] QDC 208
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- Unreported Judgment
Huckleberry Australia Pty Ltd v Aaron John Guilfoyle[2023] QDC 208
Huckleberry Australia Pty Ltd v Aaron John Guilfoyle[2023] QDC 208
DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE CLARE SC
No 548 of 2023
HUCKLEBERRY AUSTRALIA PTY LTD Appellant
and
AARON JOHN GUILFOYLE Respondent
BRISBANE
3.06 PM, THURSDAY, 7 SEPTEMBER 2023
DAY 1
JUDGMENT
HER HONOUR: The appeal is dismissed. I give reasons now. The appellant company pleaded guilty to a category 2 offence under section 32 of the Work Health and Safety Act Commonwealth and was fined $250,000. This was an appeal under section 222 of the Justices Act. The sole ground of appeal is the severity of the sentence. The notice of appeal detailed a long list of complaints about the factual basis of the sentence and the relevance of, or weight given to, various circumstances in the judgment of the learned Magistrate. The main thrust of the oral submissions of Mr Keane KCsubmissions was that His Honour had strayed beyond the offence to shift responsibility for the failings of other parties onto the appellant and had relied too heavily on other cases which were not comparable.
While specific error in the reasoning of a Court may support a conclusion that the sentence imposed was unduly high or too lenient, it does not always do so. The important question is whether the $250,000 fine was plainly unjust or unreasonable in the circumstances.
The appellant was an Australian-based tour operator dealing almost exclusively with study tours for Japanese schoolchildren. It ran tours for private and public schools and interacted with the Queensland Education Department. It booked accommodation and organised various activities. A Japanese high school with a student exchange program for Australia had contracted a Japanese travel company, which in turn subcontracted the appellant’s company, to arrange the itinerary, accommodation, and activities. The itinerary included time on K’gari with a tour of beauty spots on the island. One of the stops was Lake McKenzie. Tragically, it was during that stop that two 16 year old students drowned.
The boys had been accompanied by two of their teachers as well as a tour guide from the Japanese company. In Australia, the appellant sent its own tour guide with the group. Her role was to ensure that travel went smoothly and to provide some translation. The appellant’s arrangements had included accommodation on K’gari for three days and a full day guided tour of the island.
The two tour guides, the teachers, and students were taken on the tour by the bus driver for the island’s resort. He took them to the car park of Lake McKenzie and told the group they could swim in the lake. They were not told otherwise by any of the five adults present. No prior inquiry had been made of the students’ swimming ability. The students were left to occupy themselves on their own. At least some of them went into the water. It was not until some time later that the two boys, MMT and KKS, were missed.
The appellant company had failed to assess or identify any risks for students at the lake or for that matter in respect of swimming at any location during the trip. Consequently, the appellant had taken no steps to address that risk. There are obvious risks for swimming in Australia waterways. Those risks escalate with the inexperience of the swimmer.
With its vivid blue water and white sand, Lake McKenzie is breathtakingly beautiful and very inviting in the subtropical climate. It was only natural that students would wish to swim. Swimming in that lake, however, is fraught with risk, especially for inexperienced swimmers. There is danger in the depth of the water and the steep fall of the bottom. The appellant had no knowledge of the children’s swimming abilities. The danger of Lake McKenzie is a matter of local knowledge and signage, but the appellant’s guide gave no warning or advice about it. That is not a personal criticism of her. I am told that she had not been to the island before.
The category 2 offence was a breach of the duty of care. That is, that a party having a health and safety duty failed to comply with it and thereby exposed people to a risk of death or serious injury. The appellant’s breach was a breach of one of its primary duties of care. Contrary to section 19, subsection (2), it had failed to ensure as far as reasonably practicable that the health and safety of another person was not put at risk by the work carried out by the appellant in undertaking its service as a local agent for the international students. More specifically, the breach of duty was particularised as the failure to ensure, as far as reasonably practicable, information or instruction necessary to protect the travellers from risks to their lives arising from the work carried out as part of the appellant’s business.
Mr Keane argued that the appellant’s liability was necessarily limited by the scope of its undertaking. There were five adults present providing services on behalf of different entities. They had separate and concurrent duties in respect of the safety of the children. The appellant’s role was not to supervise the children; that was the responsibility of the teachers. The resort who had provided the bus tour had a responsibility in relation to local knowledge.
It is true that the appellant was not engaged to supervise the children, but it did have a duty to alert those who had that responsibility to the fact that swimming was very dangerous. The duties under the Act are not transferrable. In accordance with the agreed facts, the appellant should have fulfilled its duty by issuing the instruction that swimming was prohibited. It did not do so either in advance or at the site. In fact, when the bus driver had encouraged the children to swim, the appellant’s officer remained silent. There were five adults present on the tour, all with separate and intersecting duties of care. Mr Keane submitted that his client was the least culpable for the deaths and that there should have been some apportionment for the appellant’s individual culpability.
The gravamen of the offence was the exposure to the risk of death or serious harm by breaching a primary duty of care. A resulting death was not an element. Harm caused to a victim by an offence goes to the seriousness of the offence pursuant to section 9, subsection (2) of the Penalties and Sentences Act. R v Cordwell; R v Cordwell Resources Pty Ltd [2023] QCA 26 confirms that the level of harm caused can be an aggravating fact for a category 2 offence.
A death caused by an unlawful act or omission, however, would amount to the much more serious offence of manslaughter. The present conviction for the health and safety offence rather than manslaughter means that the company did not bear criminal responsibility for the deaths. Following the well established principle in R v De Simoni (1981) 147 CLR 383, the appellant could not be punished for causing the deaths when it was not convicted of those more serious offences. Therefore the appellant could not be sentenced for causing the death of the boys. The Magistrate did not do so. At sentence, the parties had agreed, and the Magistrate expressly accepted, that the appellant’s breach of duty did not cause the boys’ death.
The appellant’s offence, particularised by its failure to inform that swimming was prohibited, had exposed all the students to the risk of drowning. It was a series of acts and omissions by a number of parties that resulted in the materialisation of that risk. It seems to me that when assessing the seriousness of the offence, the Court cannot take into account the deaths except to the extent that they confirm the inherently dangerous nature of the activity that the appellant had arranged. It is for that reason I did not read the statements tendered and received as victim impact statements. The appellant’s omission risked the lives of many children. It is a certain fact that the loss of a child is immeasurable. The pain of the M and the K families would be beyond words.
In the South Australian case of R v Cleanaway Operations Pty Ltd, District Court of South Australia, Adelaide, 19 April 2017 her Honour Judge Davison cited the Madgwick factors from Comcare. Some of those are especially relevant here. Firstly, the offence was significantly aggravated –by the fact the risk of injury should have been readily foreseen. Secondly, while the gravity of the consequences of the omission on its own did not determine the seriousness of the offenceor the penalty, the occurrence of death may manifest the degree of seriousness of the relevant detriment to safety. And thirdly, the neglect of simple well-known precautions to deal with an evident, and great, risk of injury takes a breach into the worst category.
This was not a deliberate breach. There is no suggestion that the appellant was actually aware of the risk at Lake McKenzie, but the legislation demands a proactive approach. The definition of reasonably practicable in section 18 confirms that an undertaking must take all practical measures to safeguard its activities. The more obvious and serious the danger and the more likely it to occur, the greater the burden of diligence. Furthermore, the appellant in this case was familiar with the Queensland Education Department’s prohibition on swimming for public schools. The appellant had even adopted that policy in respect of prior undertakings. The fact that it did not do so for this tour group when it had ample opportunity and when the risk of catastrophic harm was so obvious, and so easily addressed, makes this a bad case. The breach was a profound and fundamental one.
The appellant had had 10 months to plan and arrange the trip. That was the opportunity to prepare a risk assessment and to take all reasonably practicable steps to avoid risk to the health and safety of the children. The appellant did no risk assessment until after the fatalities. After the deaths, the appellant then immediately sought to remediate the failing. It commissioned an independent risk assessment which did result in the appellant banning swimming along with this acknowledgment:
By and large, the majority of Asians cannot swim or are poor swimmers. Therefore, all swimming activities are not permitted.
The appellant went further to require activities near water to be heavily supervised with safety plans for the possibility of students falling into the water. The fact that a risk assessment was done, albeit belatedly, had relevance in a number of ways. Along with the plea of guilty, apologies and continued caring contact with the families, it showed genuine and meaningful remorse. The appellant had responded quickly after the event to comply with its duty. The assessment undertaken, however, also served to highlight what should have been apparent to the appellant prior to the arrival of the students, namely that the appropriate safeguard was a simple and easily implemented one.
Through its director, the appellant had demonstrated genuine and appropriate remorse. It took immediate remedial steps to avoid reoffending for future school trips, and his Honour found that it was a good corporate citizen contributing not only profits shareholders but to the good relationship Australia has with Japan. There was no need for the sentence to address specific deterrence or rehabilitation. General deterrence and public condemnation, however, were important. The sentence should serve as a warning to those engaged in the provision of services that a failure to take simple precautions to address obvious risks of serious injury to others will bring hefty penalties.
The maximum penalty is reserved for the worst category offending. It can also serve as a yardstick. The maximum penalty here was a $1.5 million fine.
No two cases are ever the same. The learned Magistrate fully appreciated that the cases before him were distinguishable, but he found some assistance in the pattern of them along with the maximum penalty. After concluding the offending here was in the high end of the mid-range, he set the fine at less than 17 per cent of the maximum. That would not appear excessive either on first principles or by a review of the available authorities.
By way of illustration, Farrell v Multi Cultural Youth Education Support Services Limited [2023] SAET 57 was an interstate decision handed down sometime after His Honour had sentenced the appellant. It involved the death of another 16 year old student. In that case, it was the boy’s supervisor, the school, which had breached its duty of care. On an excursion, the students had been permitted to fish from the rocks. It was a planned activity. Although other activities on the excursion had been the subject of some form of risk assessment, rock fishing had not. It was inherently dangerous. One child fell into the sea, others tried to rescue him. Tragically, one of them drowned. Upon a plea of guilty by an otherwise highly regarded offender, a $420,000 fine was imposed.
The second case I refer to is Judge Davison’s decision in Cleanaway. Again, that involved an inherently dangerous activity, but no significant injury was suffered. The gravity of the breach was the extent of the risk of death or serious injury rather than actual injury. Employees had been tasked with distilling solvents. A new product was being trialled. There was a failure in the handover resulting in overheating of the chemical and a rush of flame. The company had safety procedures, but they had proved inadequate to meet the risk. Nonetheless, the employee involved was spared serious injury by the personal protective equipment provided by Cleanaway. The breach had involved the failure to document the proper procedures and the reliance upon verbal instructions for the changeover of staff. Cleanaway was fined $650,000 after pleading guilty and in circumstances of other significant mitigation. Personal deterrence had special significance because Cleanaway had previously received three civil penalties for occupational health and safety breaches. Even making allowance for that, however, the Cleanaway case would tend to affirm that the $250,000 fine here was far from excessive for the appellant’s breach. I am not persuaded that the sentence imposed was manifestly excessive, or even excessive at all. The appeal is dismissed.
Yes. Mr Ward, did you want to say - - -
MR WARD: Thank you, your Honour.
HER HONOUR: - - - something?
MR WARD: No. Certainly nothing arising out of that.
HER HONOUR: All right.
MR WARD: Thank you.
HER HONOUR: Thank you. Thank you, Mr - - -
MR ARAKI: Nothing further. Thank you.
HER HONOUR: - - - Araki.
Adjourn the Court, please.