A County Court Judge has lamented the 'catastrophic consequences' of a swim school's breach of the Occupational Health and Safety Act which resulted in a 12-year-old becoming a quadriplegic.
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Former grade six pupil Milly Yeoman became a quadriplegic after the tragic accident during a school swimming lesson at the Swim and Survival Academy in November 2016.
A centre employee instructed Milly to dive into the pool, which was about 1.2 metres deep. She hit her head on the bottom of the pool, causing spinal injuries that rendered her a quadriplegic.
The husband and wife directors of De Kort Enterprises appeared in the Ballarat County Court on Tuesday for sentencing.
De Kort Enterprises, trading as Swim and Survival Academy, pleaded guilty at the Ballarat Magistrates Court on November 22 last year to breaching the Occupational Health and Safety Act.
The charge sheet stated: “It was reasonably practicable for (De Kort Enterprises) to reduce the risk by ensuring all students were not instructed to dive into water that was less than 1500 millimetres deep, especially students who appeared taller and/or heavier than average”.
The court was told Milly was 23 centimetres taller and heavier than the average female her age.
Judge Paul Lacava said "one can't escape" the issue that diving by a "tall young woman, heavier than the other children, was inherently dangerous if it was engaged in water of insufficient depth".
"Even the best corporate citizen can overlook something which has catastrophic consequences, and that's what has happened here," he said.
The court heard the maximum penalty for breaching the Occupational Health and Safety Act is a financial penalty of $1.4 million.
Crown prosecutor Andrew Palmer said the case was "not a deliberate disregard of safety, but a glaring oversight".
Mr Palmer argued that general deterrence should be taken in to the consideration, as it was "not at the worst end (of offending), but a significant safety breach".
He told the court that Milly said she was the last to dive into the pool, and she felt her "head hitting the bottom, then floated up and was face down for about ten seconds" before a, instructor pulled her up.
Mr Palmer said the Royal Life Saving Society Victoria recommends pre-crouching dives and standing dives should take place in pools with a depth of two metres.
"This is clearly a safety conscious company … but this is a failure to see an obvious hazard, and the material is unanimous in saying this should not be happening," he said.
Defence counsel Robert O'Neill said through 90,000 dives in pools at the swim school, they had never had a serious incident before this one, and the guilty plea was a show of "remorse and accepting some responsibility on this occasion".
"My submission is you consider a range which takes into account my client's financial position, which would still be a very significant penalty … but not threaten the viability of the (business)," he said.
Mr O'Neill told the court on behalf of the company director's, they "expressed their regret and apology for what happened in this event".
"They sincerely regret what has happened to Amelia (Milly), the injuries and trauma suffered," he said.
"They are committed to do anything they can to make sure no such incident takes place in the future."
Mr O'Neill said the company had undertaken both internal and external safety reviews, with recommendations still being implemented, and one of the directors is now contributing to a statewide taskforce on public pool safety.
Milly's parents, Rebecca and Peter Yeoman, were present in court. Both submitted victim impact statements, which were not read aloud, but Judge Lacava said they were "moving".
"They made plain how this unfortunate event has impacted so many lives. I was quite taken by them ... I will probably read them a number of times before I hand down my sentencing for this matter," he said.
Judge Lacava will sentence De Kort Enterprises at a later date.
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