THE lessee of a pool where a nine-year-old girl was struck and killed by a flyaway umbrella has been fined $10,000 and ordered to undertake workplace health and safety training.
Year 4 student Karrisa McDonald was enjoying her school break-up party at the Anzac Pool on December 13, 2012 when a gust of wind picked up an umbrella which struck her in the head, causing fatal injuries.
Pool lessee Ian Craig Thomson, 40, yesterday pleaded guilty in Bundaberg Magistrates Court to a charge of failing to comply with a workplace health and safety duty.
It was repeatedly stressed during the hearing that Thomson was not being sentenced for causing the girl's death but for failing to comply with health and safety regulations in properly securing the umbrellas.
"This has been a tragedy, but I ask your honour not to be overwhelmed by that in the sentencing process," defence barrister Stephen Courtney said.
He said Mr Thomson had recognised the need for shade at the pool but upon finding out it would cost $16,000, installed a number of umbrellas himself because he could not justify the large expense given his lease was only for three years and the profit margins in running a pool were tight.
On the day Karrisa was killed, it was a windy day and 300 children were at the pool.
"At the commencement of the day the umbrella or umbrellas had been closed and then wrapped shut if you can put it that way," he said.
"A client of the pool has opened this umbrella.
"My client this day was busy and didn't notice."
Mr Courtney said the "catastrophic consequences" were not reasonably foreseeable but Magistrate Deb Vasta disagreed, pointing to evidence that umbrellas had escaped and nearly hit people at the pool at least twice in the past, including on the day before Karrisa was killed.
"Perhaps the most damning feature about this case before me is this very event occurred on the day before this fatal accident," Mrs Vasta said.
"On the day before, not one but two umbrellas escaped their brackets and landed in the pool near where children were swimming.
"Just three weeks before this tragic event, an umbrella blew away and almost hit a woman who was sunbathing."
"That's the biggest stumbling block for me is it was on the radar and if not, it should have been on the radar."
Mr Courtney argued that his client had taken steps to reduce the risk by closing the umbrellas, but Mrs Vasta said he had done the same the day before when the other umbrella escaped, and someone had opened them.
She said "it was almost a certainty" that someone would open the umbrellas that day.
"Your failure to exercise these simple duties led to the death of a child and no doubt caused some serious trauma to children and adults nearby," she said.
"There is nothing I can do or say and no punishment or penalty I can impose that will bring back the life of this child.
"All we can do is our best to make sure nothing like this tragic set of circumstances ever happens again."
No conviction was recorded against Thomson who had no criminal history.