SAFEWORK NSW v SNAP PROGRAMS LIMITED AND STATE OF NEW SOUTH
WALES (DEPARTMENT OF COMMUNITIES AND JUSTICE) [2021] NSWDC
259

District Court of New South Wales, Scotting DCJ, 18 June 2021

Sentence hearing for a WPHS breach involving the death of a child in care

Key Words: Workplace Health and Safety, New South Wales, Penalty, Death Of Child In Care, Duty of Care

1. SNAP (Special Needs Accommodation Placements) is a not-for-profit, non-government organisation which provides support and care for children and adults with challenging behaviours and/or a disability, including respite care. It is a registered charity with the Australian Charities and Not-for-Profits Commission.

2. The State of New South Wales (Department of Communities and Justice), formerly known as Department of Family and Community Services) (FACS), is a NSW government entity working to improve outcomes for disadvantaged and marginalised groups including supervision of the placement of children pursuant to section 141 of the Children and Young Persons (Care and Protection) Act 1998.

3. Both SNAP and FACS pleaded guilty to offences under the Work Health and Safety Act 2011 (the Act). The maximum penalty for each offence under the Act is $1.5 million. This proceeding was to determine the appropriate penalties.

4. Riley Shortland (Riley) was born in 2008 and diagnosed with Autism Spectrum Disorder and global development delay in 2012. He had limited speech and communication skills. In 2014 the Children’s Court allocated parental responsibility of Riley to the Minister of FACS until he turned 18 years old.

5. He transitioned into full-time foster care with a foster carer registered with House With No Steps (HWNS) and FACS transferred responsibility for case management of Riley to HWNS, but FACS still held Riley’s file and information up to this point in time. Riley also began receiving support through the National Disability Insurance Scheme (NDIS).

6. In 2017, HWNS informed FACS that it was closing its foster care program and needed to return case management of Riley to FACS. Riley remained in the full-time care of his foster family. FACS took over case management until Allambi Care (Allambi) could take over Riley’s case management. FACS received a case file from HWNS that included information that Riley had special needs in relation to car travel and car seats, as he was known to remove his seat belt and attempt to alight from a moving vehicle. An adult usually sat beside him in the car. FACS’ electronic case management plan (KIDS) was not updated with this information.

7. FACS arranged for Riley to attend a camp for four days in 2017 with SNAP that would also provide respite care. SNAP had previously provided residential care for Riley, but did not have the updated information from FACS about Riley’s transport needs.

8. The day that respite placement with SNAP was planned to begin, SNAP was informed of the FACS approval
at approximately 4:45pm. After 5:00pm, a director of SNAP attempted to ring FACS to obtain more information about Riley as he had not received the SNAP referral form, but the phones had switched over to a recorded message.

9. Half an hour later a single SNAP employee arrived at the foster carer’s residence to pick up Riley and was provided with a car seat with a Houdini Stop Strap that linked the car seat straps across Riley’s chest. The foster carer warned that after freeing himself from his seat belt, Riley would try to exit the moving vehicle.

10. On the return journey to the foster carer’s residence along the M1, the SNAP employee (who was pregnant) stopped on the M1 and witnesses observed Riley running on the road with the SNAP employee running after him before they were both struck by a southbound truck. Both sustained fatal injuries and died at the scene.

11. SNAP presented the Court with evidence of improvements to its work system and expressed deep regret over the incident and acknowledged the devastating and ongoing impact that the incident has had on Riley’s family and carers. The incident has had a significant and profound impact on SNAP and its staff.

12. FACS presented the court with evidence that it was not insured for the payment of any fine (at [96]):

...it will be paid from the expenses budget within the operating Division from which the liability arose. This will in turn have an impact on the activities that can be undertaken by the Department within that Division.

13. FACS provided evidence of improved safety policies and procedures and acknowledged the grief that was
caused. FACS apologised individually to all concerned.

14. The Court summed up the seriousness of FACS actions as (at [133]-[140]):

The offence committed by DoCJ is one of considerable objective gravity. The risk of Riley freeing himself from his seat belt and seeking to exit from a moving vehicle was a risk that was actually known to FACS. The need for a second carer to travel with Riley whilst he was being transported in a vehicle was known to FACS. Riley’s BSP and the “things you should know about me” document were kept on the FACS file and should have been uploaded to KIDS. FACS failed to pass on important safety information about the care of Riley that was in its possession. No-one in FACS seemed to accept responsibility for conveying the crucial information to SNAP by completing the
SNAP referral form or by locating the file and passing on the [Behaviour Support Plan]. The likelihood of the risk occurring was high. It was known that Riley had a propensity to free himself from his seat belt and that the Houdini stop device was only effective to slow him down. It was also well established that after freeing himself, Riley would try to exit the moving vehicle. The potential consequences of the risk included the death or serious personal injury to any person in the car with Riley and of other road users. The steps that could have been taken to minimise the risk were simple and well documented on Riley’s file. The risk could be minimised but not eliminated. The required steps could have been implemented at no cost and no inconvenience to FACS. The extent of the harm caused was significant. It involved the tragic deaths of Riley, [the SNAP carer] and [her] unborn child and the trauma suffered by the truck driver and others at the scene.

15. The Court found that as the parties had pleaded guilty and shown genuine remorse, a discount on the fines of 25% was warranted.

16. SNAP was fined $90,000 and had to pay prosecutor’s costs of $75,000. FACS was fined $150,000 and had
to pay prosecutor’s costs of $70,000.

Implications

This is one of the most disturbing cases that the authors have ever examined on several fronts. We just record
the words of the Court (at [153-[157]):

This is unique case in the WHS jurisdiction and has provided significant challenges in arriving at appropriate penalties for each offender. It is not a case where the risk could be eliminated through extensive planning or use of an alternative car restraint, because there was no approved alternative available. It is not a case where shortcuts were taken to increase profits. It involved the unpredictable behaviour of a child with extensive need who did not understand safety rules. However, this increased the need for special care to be taken to ensure his safety and that of the carers looking after him. The precise risk was known to FACS and could have been minimised if it had passed on the crucial safety information. It did not do so through a failure of its workers to undertake simple administrative tasks.

SNAP tried to minimise the risk it was made aware of in difficult circumstances.

Both the Department and SNAP had been involved in Riley’s care for an extended period. It must be recognised that the support that the offenders provided for Riley had significant social utility and was provided in the context of a sector with finite resources.

The families of [the SNAP carer] and Riley, and Riley’s carers, have suffered unimaginable loss, pain and psychological trauma. The reading of the Victim Impact Statements in court and the video collage played at Riley’s funeral were moving tributes to both of them and demonstrated the enormity of the harm caused by this tragic and preventable incident. It is also the first time the Court has had to deal
with the death of a child in this jurisdiction.

In weighing all of the relevant factors in this sentencing exercise, it is appropriate to impose penalties that are significantly more lenient than would otherwise be imposed in a commercial setting.

Rachel Martin [the SNAP carer] should be publicly commended for her bravery in pursuing Riley after he escaped from the vehicle. She acted without regard for her own safety to try to save Riley’s life. She showed extraordinary courage in doing so.

View the Case

This case may be viewed at https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWDC/2021/259.html

from https://eprints.qut.edu.au/212286/1/2021_64_SafeWork_NSW_v_SNAP_Program…