Manslaughter charges laid against property owner for defective swimming pool fencing: A Game Changer
Written by: Professor Kim Lovegrove, Conjoint Professor, School of Architecture & Built Environment University of Newcastle, Partner Lovegrove Solicitors.
19th of July 2012
The police in NSW have filed manslaughter charges against a property owner for not properly fencing a swimming pool. The Sydney morning Herald in the Thursday 5th July edition stated that “the decision has the potential to affect tens of thousands of home owners, with a recent report by the Royal Life Saving Society finding that up to 85 percent of home pools in some areas do not meet safety standards”.
The detective quoted in the paper stated that they were “not looking to set a precedent or make this poor man an example. ..we believe he`s committed an offence by not adequately fencing the pool as he`s required to do by law…. We`ll allege the fence was there but not in a state that would stop people getting in” ( page 1 SMH)
The little child apparently was in the front of the property with a parent, wandered off, found its way to the pool and drowned. Katherine Plint a campaigner on child drowning prevention was quoted as saying that it was “a massive decision…it sets a legal precedent…. Councils need to enforce laws and those owners refusing to fix pools need to be prosecuted.” (page 1 SMH 5TH July).
If indeed 85% of home pools are below par in terms of safety pool maintenance, then it may well follow that many said owners are at risk of being charged with manslaughter if indeed a hapless child chances upon one such pool and drowns. What needs to be emphasized however is that this type of neglectful paradigm is not what would ordinarily be described as a potentially criminal class, yet this decision does tend to characterise them as such.
Before venturing further, consideration needs to be given to the question of what precisely manslaughter is and how could that be correlated with swimming pool maintenance neglect. Alex Milne of Lovegrove Solicitors states that:
The decision is indeed a “massive decision”. [As an aside the writer has a 13 month old child and is looking for a new home. One of the “KPI”S of the new home is no swimming pool. Further when discussing this decision with a fellow member of staff, the receptionist recounted that when she was a youngster, the family had a pool. One of her brothers accidentally fell in the pool and was fortunately OK, but her father then promptly resolved to fill in the pool such was the risk that he felt it harboured]. What the decision announces is the criminalisation of swimming pool maintenance neglect, this is a tectonic shift in terms of liability and accountability and under any criteria is a “huge upping of the ante”.
“the relevant authority on negligent manslaughter in Australia is the Victorian Supreme Court case of Nydam v R  VR 430. For negligent manslaughter to be punishable, a court will need to establish that the act or omission by the accused has caused the death of the unfortunate victim, and that the act was a conscious and voluntary act (or omission). Then the court will need to find that the accused owed the victim a duty of care, and breached the standard of care required by that duty.
The test requires the standard of criminal negligence to be applied, in determining whether the necessary standard of care was not met. This is a higher threshold of culpability than that which would be required for a case of civil negligence to be made out. According to Nydam, there must be “such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.”
It will certainly not be an open and shut case to establish negligent manslaughter against a domestic swimming pool owner. Depending on who the victim is, there may be difficulty in showing that the home owner owed that victim a duty of care. It may also be difficult to establish that the owner is guilty of a conscious and voluntary act or omission in relation to the pool’s safety. Then there is the issue of showing a ‘great falling short of the standard of care which a reasonable man would have exercised’.
The fact that 85% of home pools are below par in terms of safety maintenance could make it difficult for a prosecution to argue that no reasonable person would allow their pool to be in any way below par in safety maintenance. It may need to be shown that a pool is obviously or particularly unsafe for a court to find that an owner has fallen short of a reasonable person’s standard of care.”
One of the most significant considerations a pool owner or potential pool owner will need to take now is whether or not to have a domestic swimming pool. A swimming pool owner in light of this “massive decision” now must understand that unless there exists a reasonable level of vigilance with respect to the maintenance of swimming pools, death occasioned by swimming pool safety compliance neglect may be met with charges for what in plain English is typically referred to as “murder in the second degree” and the distinct possibility of a jail term.
It begs the question: who in their right mind would want to be a domestic swimming pool owner? But this is Australia, and there are plenty of back yard pools. Furthermore, an extremist may say that there is one way to eliminate swimming pool deaths and accidents and that is to ban domestic swimming pools as this is the only way to categorically eradicate toddler deaths and accidents in domestic swimming pools.
One thing that is crystal clear is that an owner of any swimming pool must henceforth realise that it is paramount to deploy a high level of rigour with regards to swimming pool safety maintenance. There must be an understanding that owning a domestic pool is akin to hazard maintenance in that the pool harbours potential menace and potential hazard. Furthermore swimming pool owners need to appreciate that the fact that they do not have young children does not mean that their duty to others is expunged. This case reveals that any young third party, neighbour or accidental visitor needs to be considered and on any given day at any given hour can chance upon the pool and unintended consequences can ensue. So the “fiduciary” obligation for want of a better word extends to the community rather than just one`s own familial clan or visitors.
Impact of the decision on compliance officers
The decision will no doubt give building control officers some pause, as indeed it will their chain of authority, from management up to CEO.
The question has been put to me: could a building official be prosecuted for manslaughter in circumstances where there has been a manifest failure to enforce non-compliant pool regulations? The answer would be that in given circumstances with a given set of facts the answer would be yes. But the likelihood of this would be somewhat remote; reason being it would involve a quantum shift in policy on the part of the police force to initiate such a prosecution. Such resort would be to criminalise the non-enforcement of building regulatory compliance and if this were to occur local government would be well within its rights to argue that pool safety compliance, in light of its providing a platform for serious criminal liability, becomes a police matter and therefore requires police force oversight and enforcement.
After all it is the police force that monitors and enforces driving infringements, presumably on the basis that cars can injure, maim and kill. Also, when someone through their carelessness speeds the chance of injury increases. Swimming pools, like cars, can injure and kill and there is a greater chance of this than is the case with car injuries where there is neglect, or the “taking of the eye off the ball”. To continue with this metaphor if it could be established that a traffic cop observed that a car was speeding, failed to apprehend the law breaker and then 5 minutes later the “lead foot” driver killed someone, then could the policeman be charged with manslaughter? In all likelihood this would not occur because there would be some major foreseeability hurdles to overcome in that the tardy policemen would not have reasonably contemplated that speeding would on balance necessarily kill someone. If on the other hand the driver was travelling at a speed way in excess of the speed limit and a traffic policeman failed to take reasonable measures to apprehend the menace then such neglect could be considered to be an aggravating factor.
Nevertheless some proceedings in the 9th judicial District Attorney`s Office in Pitkin county District Court USA were made mention of in the Aspen Times ( Colorado USA) in October 2011, and were referred to in a NSW AIBS newsletter published recently. Some salient quotes from said newsletter that were extrapolated from the broad sheet were that “It was the [building inspector`s] duty and responsibility to ensure building inspections were completed in compliance with the relevant city or county codes and in accordance with Colorado law…….[the building inspector]cannot rely on the Colorado Immunity Act] or Pitkin County code to claim that, simply because he was a building inspector employed by a municipality, he therefore had carte blanche to engage in conduct that violates the criminal law resulting in an entire family`s death.’’
Council Building Departments need more funding for enforcement.
Immunities from criminal prosecution in Australia for compliance officers are not in ready supply and if indeedswimming pool fence.jpg do exist then careful consideration must be given to the acts in question that purportedly provide such immunities. Furthermore if building officials were to be prosecuted for manslaughter for failing to ensure that fences were properly maintained, then the community via the ratepayer would of course have to embrace an increase in rate levies or be prepared to pay a special compliance levy to ensure that building enforcement departments are well resourced. As it is, building departments are the poor relations of the number crunchers in councils.
It is a mystery that budgets for planning offence prosecutions are much higher than those of their building enforcement counterparts. Planning offences by and large concern aesthetics and amenity whereas building regulatory offences relate to that which can prejudice life and limb. It would appear under one set of eyes that the rate payer is more concerned about matters of aesthetics than life and limb. Because if it was the other way around building compliance departments would have triple the budget and triple the resources to planners. Personally I would prefer to see more resources given to building departments.
The significance of the decision of the police force to prosecute the gentleman in question nevertheless does reverberate into the enforcement community. It amplifies the fact that the law is never settled and if indeed this prosecution is the first of its kind it displays an ability of the law to speculate into new fields, new categories of crime and new legal frontiers. It is noteworthy that Ms Plint in said article in the same breath/sentence bandied round the notion of owners needing to fix their pools and councils needing to enforce laws. It also alludes to the idea that there could well be a class of tragically affected persons that would agitate for the criminalisation of enforcement reticence in the swimming pool dynamic.
The case is therefore a wakeup call for everyone involved in the pool safety dynamic, be they owners, designers, installers, contractors or law enforcers (such as building surveyors and Council building departments) . Bushfires led to crisis driven reform in Victoria and this kind of tragedy again trumpets the need for a re-examination of many considerations to do with swimming pool safety.
Councils would also be well advised to henceforth implement audit regimes to ensure that any notices or orders that have been left in abeyance are followed up, dealt with and prosecuted. The SMH article effectively puts local government on notice.
The Law Reformers may wish to consider the following:-
Firstly the primary obligation for swimming pool maintenance must always be the responsibility of the swimming pool owner, period. It is not simply a matter of regulating for the compulsory addition of swimming pool fences. Failure to maintain fences must remain a prosecutable offence. But consideration needs to be given to property owners having to provide annual compliance certificates. In so doing they would provide evidence that an inspection had occurred and that the fence had been passed.
It would also be prudent to mandate compulsory inspections prior to the sale of property so that purchasers know that the fence is in good repair. Likewise the law could be changed to make it a term of rental agreements that prior to letting any premises that harbour swimming pools there is a current annual certificate verifying that the pool was inspected and was considered sound.
In circumstances where recalcitrant’s fail to obtain annual compliance certificates or fail to ensure that a pool safety maintenance regime is in force, the fines should be severe and should be strict liability fines. Such should be the venom of the fines, that a recalcitrant won’t hesitate embracing the cost of compliance, such being the financial magnitude of not doing so. The fines should then be appropriated to local government for the dedicated and exclusive purpose of pool fence auditing. In circumstances where the recalcitrant refuses to effect repairs building regulators should ensure that the local council has the power to carry out the repairs and avail itself of full cost recovery with the additional ability to caveat the owners property in order to secure the debt.
The law should also compel swimming pool builders to install pool fences as part of the pool infrastructure and needless to say the fences would comply with the relevant standards.
Victoria taking the initiative.
As an aside the Victorian government, the Hon Mathew Guy and the new Building Commissioner are to be commended for the proactive approach they are adopting with regards to the swimming pool maintenance paradigm. They have literally “hit the ground sprinting”. The Minister recently held a swimming pool summit with the view to devising a much more robust domestic safety regime and by all accounts very positive changes will find their way into revised building regulation in the near future. Concerned parties were most reassured when they heard the Commissioner Mr Michael Kefford state that the Commission had in recent months initiated a vigorous inspection and auditing regime of swimming pools. Some 600 pools had been audited and 14 search warrants had been issued to compel owners to grant access to their sites for the purposes of inspection. Stephen Smith Managing partner at Lovegrove solicitors said “It is most reassuring to see the paramount building regulator being so proactive in a space that is all too often attended by tragedy; it would be great to see other jurisdictions (councils included) picking up the ball and running with it”.
Regulate, enforce and don’t leave things to chance!
The introduction of these types of regimes would minimise the random nature of human error in the swimming pool dynamic. It appears that when things are left to chance the risk of toddler pool death is higher. It also appears that there are a sufficient number of swimming pool owners who unless compelled to upgrade fences neglect to do so and although this involves clear culpability on their part. The culpability is of little comfort to a grieving family if the child has died. Admittedly there will be a significant annual cost to pool owners in paying for an inspectorial regime, but it has to be considered as a price to pay for what is in effect hazard maintenance. Furthermore people don’t have to have pools, for fear of labouring the point the writer wouldn’t want one in “a pink fit”, such is the high level of risk management responsibility that necessarily has to be assumed in owning one.