The price of student safety : Lessons in duty of care and school risk assessments

In brief: The case of Guilfoyle v Huckleberry Australia Pty Ltd has provided a timely reminder about the risks associated with school excursions and what schools need to do to ensure they discharge their duty of care. 

Background

In March 2019, two 16 year old Japanese students Taiki Mizuno and Shinnosuke Kimura died from drowning in Lake McKenzie during a guided tour of K'gari (Fraser Island). 

The students were from Kanagawa University High School (KUH), a school  with an international exchange program that had been organising student trips to Australia since 2003. KUH engaged Japanese tour company JTB to organise the trip. JTB, in turn, subcontracted to Australian company Huckleberry, which primarily provides school study tours for Japanese travel agents and schools. 

As part of the tour, the group stopped at Lake McKenzie in K'gari. The lake was unpatrolled, not fenced and was accessible to the public. There were a number of visible signs in the area, with one stating: "Safety around water. People have suffered serious injuries in water related accidents. The lake is not patrolled by lifeguards. Swimming is not recommended. Avoid tragedy - do not dive into the lake; always stay with children when near the water."

Despite the signage, the bus driver (who was not employed by Huckleberry) informed the travellers they could swim in the lake. The students were left to occupy themselves and some of them went swimming. Some time later, it was realised that the two students were missing. The following day, police divers located the bodies of the two students in the lake.

Prosecution 

The Office of the Work Health and Safety Prosecutor brought charges against Huckleberry for breaching their duty of care under the Workplace Health and Safety Act 2011 (Qld) (WHS Act).

Huckleberry pleaded guilty to an offence under section 32 of WHS Act. Section 32 is contravened where a person has a health and safety duty and fails to comply with that duty in a way that exposes an individual to a risk of death or serious injury or illness.  

It was of significance that Huckleberry had not undertaken a thorough risk assessment and could have discharged their duty by telling the students not to swim in the lake. Huckleberry pled guilty to the charges, and the prosecutor sought penalties between $150,000  and $180,000.

In assessing an appropriate penalty, Costanzo J considered like decisions, where penalties had been imposed ranging from $250,000 to $400,000. Ultimately, His Honour considered in light of the comparative decisions and the facts of the matter, that a penalty of not less than $250,000 was appropriate.

On appeal Judge Leanne Clare SC found the $250,000 penalty imposed “was far from excessive for the appellant’s breach” and was “not persuaded that the sentence imposed was manifestly excessive, or even excessive at all”. The penalty was upheld and the appeal was dismissed.

Risk assessment procedure 

KUH scheduled three meetings prior to the trip to Australia. The meetings, facilitated by a KUH teacher were attended by the students, their parents, other KUH staff and JTB representatives. 

The parents of the two deceased students had completed and signed "Group Study Tour Application forms" provided by Huckleberry prior to the trip. While the form included questions regarding allergies, medications and health issues, they did not ascertain any information from the students about swimming ability or consent to go swimming. 

Key takeaways for employers:

The judgment emphasised the responsibility to identify risks by conducting an actual, specific and deliberate risk assessment in accordance with section 18 of the WHS Act. While there is an ultimate duty of care under section 19 to ensure the health and safety of workers, so far as is reasonably practicable, the duty under section 18 clarifies the responsibility to identify risks and adopt measures to minimise risk. There is a positive duty requiring duty holders to search, detect and eliminate risks. 

While the duty to ensure safety is not about elimination, but management of risk, schools,  tour operators, contractors and service providers must take steps to minimise reasonably foreseeable risks. 

SafeWork Australia's Code of Practice identifies that a risk assessment should be conducted whenever:

• There is uncertainty about how a hazard may result in injury or illness;

• There are several different hazards and there is a lack of understanding about how the hazards may interact with each other to produce new or greater risks; and

• Changed circumstances may impact on the effectiveness of control measures.

Tour risk assessments should include, as a minimum, geo-political risks, student and staff needs, participant's abilities to undertake activities (for example ability to swim if swimming is an activity) and inherent travel risks. A risk assessment must be undertaken for each individual activity during the course of the trip, and importantly, these risk assessments must be updated as risks or activities change. 

School policies for high-risk activities such as overseas tours must be comprehensive and provide adequate guidance to schools,  staff, tour operators, students, and other adult participants about the risks and provide sufficient information to enable safety obligations to be discharged. A school's duty does not end with a risk assessment or with outsourcing risk to contractors or service providers. The responsibility is ongoing, it changes depending on the circumstances and it lasts for the duration of the tour. 

To ensure your risk assessments are comprehensive, additional information should be obtained and guidance considered on the following: 

• Service provider contracts, expertise and their risk assessment; 

• Insurance cover;

• Specific student issues including health, medication, ability/capacity;

• Each activity, back up activity and when activities will be abandoned and changed;

• Policies and procedures to guide information gathering and the process of managing tours and groups.

Our multi-disciplinary team can assist with undertaking these assessments, drafting policies and checklists to guide your team through the very real risk of risk management.