Learning from past incidents

The Cathedral Cove Dive Ltd Prosecution

 

None of us wants to have a serious accident. Neither do any of us want to be insensitive to those organisations who have had the misfortune to go through a serious accident and a prosecution by the authorities. However, we all have the responsibility to take whatever learning we can from other’s misfortune to inform our own safety management systems to improve our own organisation’s safety efforts and prevent similar tragedies. To this end, we intend to review pertinent incident reports or prosecution outcomes in our operator newsletters.

In this case study, we will highlight the judge’s recommendations following the successful prosecution of Cathedral Cove Dive Ltd. The judge’s recommendations are presented for you to reflect on in relation to your own SMS processes and implementation.

 

Summary of incident

On the 4th November 2014, Ms Su Li Hung was taking part in a PADI Discover Scuba Diving course with Cathedral Cove Diving Ltd. Ms Hung was a Taiwanese tourist taking part in the course with three family members. The family had come to New Zealand to visit their son who was a temporarily resident studying English. The son was part of the diving group and the only person in the group with any English speaking capability.

The group hired all their equipment from the defendants. They were given an initial briefing of approximately 45 minutes. They were then taken by the defendants to the dive site located on the western coastline of Maharangi Island just out from Hahei beach. The defendant’s boat was anchored in a small sheltered bay known as “Seal Bay” in two metres of water approximately ten metres from the shore.

There was further briefing about getting off and on the boat and other instructions after which the group members began entering the water individually. A Cathedral Cove Dive Ltd instructor accompanied Ms Hung for approximately 11 minutes around the bay. She was then left on her own while others in the group were instructed. While unsupervised, Ms Hung swam out of the bay through a small gap in the rocks and did not return to the dive site.

After a short period, the company personnel noted that Ms Hung was missing. Efforts were made to locate her, initially in the enclosed bay and then the wider area. Eventually emergency services were contacted as a result of which nearby Coastguard Search and Rescue vessels were deployed and the Police Eagle Helicopter engaged. Eventually Ms Hung was found floating face down in water 1.3km away from the dive site. Her air supply had been exhausted. Pathology confirmed drowning as the cause of death.

The incident occurred before the enactment of the new HSWA and thus prosecution was carried out under the old HSEA.

 

Cathedral Cove Dive Ltd pleaded guilty to the following charges:

  • Failure to take all practicable steps to ensure that no action or inaction of an employee while at work harmed any person – s15 and s50(1)(a)
  • Failure to take all practicable steps to ensure that plant to be hired had been maintained so that it was safe for the known intended purpose – s18A(1) (b) and s50(1)(a)
  • Failure to take all practicable steps to ensure that every employee who dived in the course of that employee’s work was, at the time of diving, medically fit for diving – s50(1)(c) and regulation 49 of the Health and Safety in Employment Regulations 1995.

 

The summary of the case revealed that Ms Hung was left unsupervised in the water while wearing scuba equipment and allowed to swim out of the enclosed bay area and exhaust her air supply. She drowned as a result of being unable to right herself in the water.

A lack of supervision was the primary cause of the fatality but there were additional contributing factors:

  • The issue of a buoyancy compensator device (BCD) that was too large with the consequence that it was more difficult for Ms Hung (a person with no dive training or experience) to lift her head out of the water from a face down position.
  • When it became apparent that Ms Hung was missing, the overall process to search for her and call emergency services was too slow.
  • The defendants did not provide emergency services with accurate coordinates of the dive site.

The company had been operating for many years and had used the particular dive site frequently with no previous difficulty.

 

Summary of failings

The judge summarised the failings in relation to the incident as:

  • Failure to conduct the dive briefing in a language that the participants could understand;
  • Failure to provide appropriately sized dive equipment (a BCD that was too large for Ms Hung);
  • Failure by the company to conduct the DSD in accordance with the applicable provisions of the company’s safety management plan including:

 

– No trip log communicated to the Coast Guard – Failure to ensure direct supervision provided to all participants while in the water wearing scuba gear – Failure to contact emergency services promptly and to provide accurate coordinates of the dive site.

 

The judge then identified a number of available practicable steps that could have been undertaken including:

  • Providing the briefing in a language the participants could understand or refusing to allow a dive
  • Carrying out a safety review test
  • Providing procedures to ensure participants with limited English understanding, understood the briefing and its requirements
  • Ensuring a documented dive safety log in place for each trip with appropriate coordinates and current weather and tide information
  • Confirming each trip with the Coast Guard
  • Providing high visibility dive equipment
  • Ensuring correctly fitting equipment
  • Providing appropriate direct supervision
  • For each of the charges listed above, there was a maximum penalty of $250,000 per charge. The judge awarded a fine of $66,000 and reparation to the victim’s family of $125,000.

 

Taking into account the ability of the defendants to pay (which was very limited), the fine was put aside in preference to reparation to the family. The defendant was ordered to pay a lump sum of $50,000 and a further $20,000 at a rate of $400 per month.

Some questions to ask yourself about your own SMS, in light of this incident:

  1. Have you identified the hazard of participants who don’t speak English? How do you manage this hazard?
  2. How do you ensure each participant has correctly fitting PPE (personal protective equipment)?
  3. Are your emergency management preparations comprehensive? Do you practice these?
  4. Are your supervision arrangements for participants appropriate for the risk?
  5. Do you check that staff are following all of your SMS policies and procedures?
  6. Another learning point for readers of this article is the place for an appropriate level of Statutory Liability Insurance. Statutory Liability Insurance covers your business and its employees against unintentional breaches of a large range of New Zealand legislation.

The HSE Act and its replacement, the HSW Act, prohibit insuring against fines imposed under the Act. However this still allows insurance to cover legal costs and any reparation payments ordered by the courts.

A minimum level of insurance cover would be $500,000 and any business should consider higher levels than this. We suggest you discuss this cover with your insurance company or insurance broker as part of a wider discussion in terms of a package of insurance for your business risks.

Matt Phillips