R v Kite  2 Cr. App. R.(S.) 295
The Kite case is slightly different from some of the decisions we have looked at in the Safety Case(s) series, in so far as it is an English decision and a manslaughter case, as opposed to a prosecution under Australian health and safety legislation. However, the case does have value in the context of health and safety, given the nature of the accident and the comments made about obligations for safety.
Keywords: Negligence; manslaughter;
Mr Kite, the managing director of OLL Limited, was convicted of manslaughter and sentenced to 3 years imprisonment.
OLL organised leisure activities for young people. A group of school children taking part in a canoeing trip organised by the company went on to the open sea, and four were subsequently drowned.
The prosecution alleged OLL caused the accident because they did not maintain proper safety standards for provide sufficiently experienced leaders.
Mr Kite did not know school children were involved in trips of the kind which resulted in the accident but was convicted by reason of his “failure to establish a proper system for their safety”.
There was no allegation that Mr Kite was directly responsible for the arrangements leading to the fatal incident.
The incident involved eight students, a teacher and two instructors on an open sea canoeing trip. Early into the trip teacher got into difficulties and repeatedly capsized their canoe. One of the instructors stayed with the teacher, the other went on with the students, however that instructor was very inexperienced. The group drifted out to sea and got into difficulties, and four of the students were drowned.
While the decision was concerned with an appeal against the sentence (which was reduced from 3 years imprisonment, to 2 years imprisonment) it did discuss some of the allegations against Mr Kite.
That evidence included expert evidence that the instructors were not experienced enough or suitable to leave the expedition and evidence of breaches of guidelines issued by the British Canoe Union. There was also evidence of a letter which Mr Kite received, and says he acted on, read in part:
At present we are walking a very fine line between ‘getting away with it’ and having a very serious incident … We would also like to know why we do not get supplied with a first-aid kit and tow-line … It's unsafe and not organised … Having seen your 1993 brochure and planned expansion, we think you should have a very careful look at your standards of safety, otherwise you might find yourselves trying to explain why someone's son or daughter will not be coming home. Nobody wishes or wants that to happen, but it will sooner or later.
One of the limitations of using case studies to examine health and safety is you are limited to the content of the case. This case was a sentencing decision and did not include a full and detailed examination of the evidence against Mr Kite. However, the case is interesting in light of recent manslaughter charges for ostensibly health and safety breaches in Australia, and the increasing call for offences of “Industrial Manslaughter”.
Looking at the case and considering Mr Kite’s position of responsibility in relation to the incident, it is easy to think of many cases in an Australian context where a manager has had a much closer connection to an incident, and far more obvious control and direction over safety considerations that Mr Kite appears to have had in this case. However, no prosecution has resulted, much less manslaughter charges.
It would be interesting to see (and perhaps we are starting to see some hint of this) what a prosecution regime in Australia might look like if the regulator took a very serious and considered position about pursuing criminal charges and high-level offences under health and safety legislation.
You can read more articles in the Safety Case(s) series HERE.
This article represents a general discussion about legal principles. It is not specific advice, and you should seek your own legal advice in relation to your specific circumstances.