The Sydney Morning Herald reports that a landmark case is being brought in New England, where a landowner is being charged with manslaughter after a toddler from a neighbouring house wandered into his yard, got through the unmaintained fence and drowned.
Mr Cameron [the pool owner] was inside his Armidale home watching television one afternoon this year when the boy wandered through his backyard and fell in the pool.
Mr Cameron’s unkempt pool, described by one neighbour as ”a bit of a cesspit”, had a fence around it that was dilapidated.
After a two-month investigation, police charged Mr Cameron with manslaughter on Tuesday evening and ordered him to appear in an Armidale court next month. He is believed to be the first pool owner to be charged with manslaughter for not having a proper fence.
Katherine Plint, a campaigner on child drowning prevention, said it was a ”massive decision”. ”It sets a legal precedent which is what we want. Councils need to enforce laws and those owners refusing to fix their pools need to be prosecuted,” said Ms Plint, founder of the advocacy group Hannah’s Foundation.
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 per cent of home pools in some areas do not meet safety standards.
Detective Inspector Greig Stier from New England police said 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,” he said. ”We’ll allege the fence was there but not in a state that would stop people getting in.”
The toddler, his parents’ only child, was playing with his mother in their front yard about 4pm on May 14 when he wandered off.
Ms Plint, who has been involved in the investigation, said the mother looked away for ”a matter of seconds” to talk to a neighbour.
Pool owners are required by law to erect and maintain adequate fencing.
Neighbours had apparently complained about Mr Cameron’s fence. However, the general manager of Armidale Dumaresq Council, Shane Burns, said a formal complaint was never received so the council was never obliged to check the fence. They were only required to when the pool was built.This would be an instance of involuntary manslaughter: in other words the actions (or inactions) of the defendant killed another person without an intention to do so.
She frantically searched for the boy but a neighbour found him in Mr Cameron’s pool.
Presumably it will be alleged that this is an instance of manslaughter by criminal negligence, which requires the prosecution to prove that the accused’s omission causing death involved a departure from the standard of care to be expected from a reasonable person to the extent that it should be called a crime against the community generally, and thus conduct deserving punishment.
It is fruitful to think about what the situation would be in the civil arena. The difficulty with occupier’s liability in negligence is that it invariably involves an omission, or a failure to meet certain standards, rather than a positive action. In a sense, defendant occupiers are the most passive defendants in negligence generally. The law used to distinguish between different classes of entrants to property (invitees, licensees and trespassers) and the standard of care applying to each differed (so, for example, you’d have a higher standard of care towards someone you invited on to your property than you would to a trespasser whom you did not invite or even want on the property). The High Court erased those categories in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 and held that general principles of negligence applied to occupiers of land (although in Victoria, at least, the categories had already been abolished by Part IIA of the Wrongs Act, which still governs the law with regard to state of the premises).
Section 14B of the Wrongs Act sets out the duty of occupiers. For present purposes, sub-s (3) and (4) are relevant to get a feeling as to what courts think is reasonable conduct on the part of an occupier:
(3) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.
(4) Without restricting the generality of subsection (3), in determining whether the duty of care under subsection (3) has been discharged consideration shall be given to-
(a) the gravity and likelihood of the probable injury;
(b) the circumstances of the entry onto the premises;
(c) the nature of the premises;
(d) the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises;
(e) the age of the person entering the premises;
(f) the ability of the person entering the premises to appreciate the danger;
(fa) whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication;
(fb) whether the person entering the premises is engaged in an illegal activity;
(g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
This incident took place in NSW and the NSW Civil Liability Act 2002 does not seem to have an equivalent provision, but I set out the Victorian provision so that you can see in short compass the kinds of factors which are relevant (under both common law and statute).
With the caveat that I do not have the full benefit of all the facts in this case, if this case had been brought in negligence under a civil standard, I can hazard a guess that that on the balance of probabilities, the occupier may well be liable because of the clear required standard of pool fencing, the fact that standard appears not to have been met, the fact that the entrant to the property was a small child who had no idea of the risk to himself and the gravity of the injury suffered (as grave as one can get). This would be balanced against the fact that the occupier would not have known that the toddler was on the premises.
But negligence according to the civil standard is quite different to saying that someone is criminally negligent such that they should be held guilty of the crime of manslaughter. Is this negligence of a level which should be held to be a crime to the community in general?
What do people think? Should the landowner be charged with manslaughter? And does it open a whole can of worms as to who should take responsibility for such a death? The poll attached to the article presently discloses that 3% of respondents think that the safety of small children around pools is the landowner’s responsibility alone, 57% of respondents think that it is the responsibility of the child’s parents alone, and 40% think that it is the responsibility of both, although the poll is still open for a while.
Personally, I feel hideously sorry for the child’s mother and I am sure she will never forgive herself for the rest of her life. If you don’t have kids (or your kids are grown up?) perhaps it’s easy to stand in judgement; but as a parent with young children, I know how very easy it is to take your eye off them for just a second, and they dash away. But the majority of respondents to the survey (which is admittedly an unscientific one) seem to see it as a parent’s responsibility, not that of the landowner, nor a joint responsibility. I wonder if the case will open her up to criticism? I also feel very sorry for the occupier – I am sure that this will haunt him for the rest of his life, regardless of whether he is convicted or not.
Marcellous has pointed out that that the occupier’s duty to fence the pool is already established by s 7 of the Swimming Pools Act 1992 (NSW), which provides that:
(1) The owner of the premises on which a swimming pool is situated must ensure that the swimming pool is at all times surrounded by a child-resistant barrier:
(a) that separates the swimming pool from any residential building situated on the premises and from any place (whether public or private) adjoining the premises, and
(b) that is designed, constructed, installed and maintained in accordance with the standards prescribed by the regulations.
Maximum penalty: 50 penalty units.
He points out that there is already a criminal provision for a failure to have a fence according to the Act. He says:
I feel sorry for the person facing this charge, and it may also be that a jury will and decline to convict because manslaughter seems such a terrible thing (though this is actually a bit misleading – see below). Offences such as culpable driving causing death were introduced because of the historical reluctance of juries to convict for manslaughter when caused by a motor vehicle. Part of that was because juries might not wish to expose a motorist to the range of sentencing discretions for manslaughter. There have been various sophistications of offences since then, giving range to arguments such as those ventilated in the recent High Court case of King v The Queen – see here for a hook into that.
In the absence of such specific offences for swimming pool fences, it remains the case that manslaughter covers a very wide range of criminality. The crucial difference between murder and manslaughter is that manslaughter has a much wider sentencing range and discretion. Further, if this man is convicted of manslaughter, the sentence he will face will be much less than the sentence that, for example, those “just-short-of-murder” manslaughter offenders face.
See here for the NSW Public Defender’s guide to sentences for manslaughter by criminal negligence in NSW.
Indeed, I was thinking of culpable driving offences when I wrote the post as an analogous kind of thing, although an occupier who fails to maintain premises is still more passive. We’ll have to wait and see what happens with this one.