DET fined again for OH&S failures

By Joan Lemaire

On May 17 the Industrial Court of NSW fined the Department of Education and Training (DET) $225,000 for failing to ensure the health, safety and welfare of an employee.

WorkCover prosecuted DET in relation to an incident which occurred during an excursion conducted by a teacher and a teachers aide with seven intellectually disabled students to a fenced off tidal pool on October 15, 2002. The excursion was designed to "get the students accustomed to water not to teach them to swim". The teachers aide supervised five students in the pool while the teacher cooked the barbeque with the other two students. One student went into deep water and wouldn't return to shore. The teachers aide went in to get the student; the student panicked and held her under the water until she broke free. The teachers aide was taken to hospital and died on October 29, 2002 from Adult Respiratory Distress Syndrome caused by near drowning.

DET was found to have breached its obligation to ensure employee safety in a number of ways. DET failed to "provide such information, instruction and training to ensure that its employees were aware of, and complied with its Guidelines for the Safe Conduct of Sport and Physical Activities in Schools. An employer is required to do more than issue a policy; it has to support its implementation.

Justice Boland indicated DET should have "ensured that there was present at all times at the Inlet pool a minimum of two adult supervisors with appropriate expertise and/or qualifications with respect to swimming". This would have been consistent with the requirements of the guidelines.

Justice Boland also found that the system of work was not safe for the teachers aide because she was "effectively left on her own to manage five students as best she could".

Despite DET claiming a risk assessment was undertaken, Justice Boland found DET failed to "ensure that an adequate risk assessment was conducted in relation to the nature of the excursion including venue, and the participants in the excursion". He then described the necessary points which would have constituted an "adequate risk assessment".

1. The depth of the pool and the risk to non swimmers.

2. The swimming ability of the students. Access should have been prevented to the deep part of the pool.

3. The number of staff needed based on the number of students, and the size and depth of the pool.

4. The swimming ability of the teachers aide.

5. The prospect of the particular student becoming excited or panicky and difficult to manage in the pool. The student was tall, strong and "had a history of unpredictability". Justice Boland said: "That he might present a risk in the pool was entirely foreseeable given the previous incident where he pushed a student underwater".

6. Whether it was necessary to constantly monitor the students in the pool and the ability for someone to quickly respond.

Justice Boland concluded if a risk assessment had been undertaken considering these matters it would have been decided that "aquatic activities would have to be abandoned".

This case points to the need to consider individual student behaviours which may pose a risk, in addition to general risks which the excursion might pose to both students and staff. Both the general and specific risks need to be managed.

Joan Lemaire is an Industrial Officer.

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