16 October 2020

The Defence Force was sentenced at the Auckland District Court today for health and safety failings following the death of a trainee diver.

In March 2019 a group of trainees was taking part in an 18 week advanced diving course. Following a full day of dive exercises, the trainees were undertaking a night dive when one of the trainees was identified as in trouble and pulled unresponsive from the water. The trainee later died as a result of a brain injury due to oxygen deprivation.

A WorkSafe investigation found the exercise went against the Defence Force’s own training standards. It also found trainees were covertly switching their breathing apparatus from nitrox to oxygen mode, which ran the risk of leading to oxygen deprivation. This switching activity was known between trainees but not to their supervisors in the Defence Force.

WorkSafe’s Head of Specialist Interventions Simon Humphries said while WorkSafe couldn’t find evidence to suggest the Defence Force’s actions had directly caused the victim’s death, health and safety failings were still evident.

“To put it very simply there was a lack of supervision,” said Mr Humphries.

“There were no diver attendants, whose role was to observe the floats attached to the divers indicating their position in the water on the night of the incident. This was the divers only means of communicating to the surface should they be experiencing difficulty whilst underwater.

“The Defence Force was not following guidance it had set out for itself. This guidance was put in place for the health and safety of these trainee divers and it is disappointing that it was ignored.”

Mr Humphries said it was reasonably practicable to expect the Defence Force to have ensured divers were effectively supervised during training operations.

“They should have ensured the correct number of supervisory staff were present. There was also a failure to ensure that all divers, including instructors, had Certificates of Competence for diving.

“These health and safety failings exposed all the trainees to a risk of serious injury or death.” The New Zealand Defence Force was ordered to pay a fine of $288,750.

Notes:

• A fine of $288,750 was imposed.
• New Zealand Defence Force was sentenced under sections 36(1)(a), 48(1) and 48(2)(c) of the Health and Safety at Work Act 2015.
  • Being a PCBU having a duty to ensure, so far as is reasonably practicable, the health and safety of workers who work for the PCBU, while the workers are at work in the business or undertaking, namely while undertaking dive training at the Devonport Navy Base, did fail to comply with that duty, and that failure exposed any individual, to a risk of serious injury or death. 
• S 48(2)(c) carries a maximum penalty of $1,500,000.