On 13 August 2026, a public pool operator was sentenced in the Brisbane Magistrates Court after being found guilty after a 5-day trial for breaching their health and safety duty to other persons pursuant to section 19(2) of the Work Health and Safety Act 2011 (Qld) (‘the Act’) which exposed individuals to a risk of death or serious injury, contrary to section 32 of the Act.

The defendant was found to have failed to:

1. provide adequate supervision of the pool; and/or
2. roster on one or more additional staff members; and/or
3. arrange for the attendance of one or more additional “on-call” lifeguards; and/ or
4. prioritise lifeguard duties over other tasks, including front counter duties and cleaning; and/or
5. have a system in place to ensure on-duty lifeguards were relieved when they were attending to other tasks or taking breaks.

On 16 November 2019, a 5-year-old child drowned and later died. The child went to the indoor pool with his mother and lowered himself into deeper water which was 1.2 metres deep. The duty manager was at the front counter serving customers at the time and did not see this happen.

There were around 60 people in and around the pool and CCTV footage showed no lifeguard walk around the perimeter of the pool for at least 13 minutes and 25 seconds. The defendant had an Aquatic Supervision Plan which required indoor and outdoor pools to be roamed by a lifeguard. The level of patronage meant that a lifeguard should have been roaming.

Her Honour found that the evidence established, that fixed supervision of the indoor pool from the front counter did not provide proper supervision, having regard to the structures of the pool including the ramp and bulkhead, the learn-to-swim ledge extending the length of the pool, as well as the effect of reflection on the water compromising visibility under the water surface.

Risk factors that increased the likelihood of a drowning occurring included:

1. the number of people in and around the pool;
2. children using the pool;
3. the pool structure; and
4. the ramp and associated bulkhead.

The defendant was aware of these risk factors. The evidence proved beyond reasonable doubt that it was reasonably practicable for the defendant to have ensured that the indoor pool was supervised at all times by a roaming lifeguard in accordance with its Aquatic Supervision Plan.

After finding the defendant guilty on 23 April 2026, Her Honour found that the offending was mid-high range seriousness, there were a number of people exposed to the risk including non-English speaking people and children, the risk was live for a considerable amount of time, and the risk was obvious and foreseeable. The presence of the learn-to-swim ledge, bulkhead and glare made supervision more important.

The harm caused was an aggravating feature and Her Honour focussed on the need for general deterrence in imposing a sentence that was just in all the circumstances, and which satisfied deterrence and denunciation.

Her Honour took into account the guidelines in sections 9(2) and (3) of the Penalties and Sentences Act 1992 (Qld). It was also noted that the defendant was not to be punished for taking the matter to trial, but would not reap the mitigating advantage had there been a plea of guilty, noting that it was a 5-day trial with cross-examination of the parents of the deceased child. Her Honour also took into account the comparable cases provided by both parties and, in particular, the principles set out in Nicholson v GCMR Project Services Pty Ltd [2025] QCA 24.

In mitigation, the Magistrate noted the defendant’s lack of criminal history, good corporate citizenship, well regard within the industry, improvement in safety measures, cooperation in the investigation and written expressed remorse which was found to be two-sided. Her Honour acknowledged the impact recording a conviction might have on the business.

Ultimately, Her Honour sentenced the defendant to a fine of $575,000 with professional costs of $8,375 and a court filing fee of $101.40. Her Honour did not record a conviction and the penalty was referred to SPER.

OWHSP contact: enquiries@owhsp.qld.gov.au