The flood day and duty of care and SNAPs case
On flood day in Sydney, NSW last week I was getting my son ready at 8am for a day outing to 10 pin bowling with a group. He has a one on one worker who was coming to pick him up – at the same time the rain was pouring down and cars were stopping outside my house and not moving in a long line on the Great Western Highway going toward the city…indicating some kind of hold up or car accident.
When the worker arrived she looked scared - and I had just tried to shave my sons face to make him look nice and nicked his lip from all the moving around so he was bleeding Ill just try to stop this I said put cold flannels and everything but it wouldn’t stop oh no the worker said there was a car accident on the way up here and the water is up to my door in some of the floods I started to worry as she said it…do you think we should leave this I said? There’s floods everywhere …the worker a young girl said I don’t know if I can bring him home later if it is still flooded on the hill maybe we should leave it…Ok I thought I didn’t want to put her through the whole drama of something going wrong even though he loves to go to bowling…James was making lots of noise with his music and really excited to go out but I said sorry baby and now I made your lip bleed this is a mess…yeah well leave it I agreed with the worker.
I felt she was stressed and I was stressed trying to make a decision – I knew my daughter wanted a break from James too, and the support worker girl was very young I didn’t want her not to be able to bring James home. I nearly asked her to take him out for a short drive – but where in the floods? So we said goodbye. I walked my son to the local health centre in the rain since the cars were not moving outside my house it was quicker to walk, and go the nurse to try and stop his lip bleeding she did no better and he wouldn’t sit still. I walked him home with an umbrella and left him with my daughter for a while – well that was kind of an outing I said. I had a coffee and my daughter said – its stopped bleeding. I went to the chemist bought all these things to help it heal and I thought to myself its all health and safety we have to do to protect our disability children. So many details.
After that all day there were floods around Sydney and Western Sydney I realized it was the right choice. People even died driving in the floods right throughout NSW as well as Lismore of course and Windsor. One mother died with her autistic nonverbal son when they drove into a flooded part of road in the Northern beaches, and somehow crashed the car was found empty and their bodies further along in the waters – I felt so upset for her and her son an adult boy, and she was 67 years old…family friends on the news said she lived for her son. Don’t we all live for our vulnerable children? That could be me and James I thought tears filling my eyes – that could be any of us. We try so hard to protect our children from harm even as adult children we want to stop anything or anyone harming them – it was a tragedy and heartbreaking to say the least.
Thank God I never sent James with the worker I thought she could have slidden in the car in the floods they both could have been in an accident.
A few days later the manager sent me a bill for the day program – you made a late cancellation he said – no I said I will not pay for the full day, your worker was too scared or not confident to drive my son in the rain and that is why I cancelled…well she never told us he said, yet I knew she had called them about it, it was unsafe and she was too scared to take James I said to him it was not just me cancelling the whole situation was bad. He argued with me and I said if anything happened it would be on you (deaths or accidents) then I thought it would have been on me ultimately because I would have blamed myself for letting James go with the worker in the stormy rain and floods. It would have almost been reckless endangerment one of those laws where people see something that could potentially kill someone and yet still proceed with the action! I thought back to the SNAPs case Central coast, just settled in 2021.
https://eprints.qut.edu.au/.../2021_64_SafeWork_NSW_v
where a young woman support worker, Rachel, had not been informed that the eight year old boy she was transporting could escape from a seat belt and needed someone to sit with him in the van and also a special harness, lack of information lack of health and safety. She then tries to transport him down the Pacific Highway of four lane traffic and as she stops at traffic lights he jumps out and runs up the highway. She stops the van and chases him and they are both killed by a truck including her unborn child since she was pregnant. With health and safety (Health and Safety Act 2000 NSW) there are procedures that employers are meant to follow and if they do not protect their workers they are worthy and their company of prosecution. This company also had a duty of care to the young boy and they did not fulfil it by making him safe or informing the worker what he needed to be safe in the van. They have since been prosecuted but three lives have been lost and no amount of money can bring them back. Organizations deserve shutting down who will not do the right thing by their workers or by their ‘clients’ the poor wretched vulnerable disability children or adults who are often not kept safe at all. It seems there is little regard for the support workers as well by the disability organizations they work for who are preoccupied with making money.
When I saw James support worker the next week, I said it was right what you did to not go driving into the floods that morning in peak hour traffic with James if you were not sure – you were thinking about James’s safety and your safety and if you didn’t and anything had happened to James or you, that company you work for would have been in trouble your boss is just thinking about the money (he didn’t want the day cancelled) but you and I were thinking about the health and safety of my son and that’s the way it should be. I don’t want you or James to be killed in an accident like that I said telling her about the SNAPs case you have to always consider risks and I would never get over it.
If something had happened like an accident in the floods of course it is misadventure but why put my son and his worker at risk just because there was meant be a program running if they died on the way there? These disability providers owe duty of care to those they are meant to be looking after and to their employees – why do they hire them so young? To make money but they are them culpable for what they allow to happen to these workers and to those vulnerable like my son that are sent to work with him and have duty of care for him. It is not worth it if someone is harmed. There are not many places I would send my son now because when he has gone to respite or a day program and come back with injuries I could not prove what happened without solid proof such as CCTV cameras now I realize because duty of care is part of criminal law in NSW there is higher need for evidence in order for any prosecutions to happen and the only way to get that is cameras. sign my petition change.org/disabilitycameras

All the best
Anndrea x

      NOted in the SNAPs Case the bravery of the worker...NSW District Court SafeworkNSW vs SNAP programs and state of NSW (Dept of Communities and Justice) 2021
"The families of [the SNAP carer] and Riley, and Riley’s carers, have suffered unimaginable loss, pain and psychological trauma. The reading of the Victim Impact Statements in court and the video collage played at Riley’s funeral were moving tributes to both of them and demonstrated the enormity of the harm caused by this tragic and preventable incident. It is also the first time the Court has had to deal with the death of a child in this jurisdiction.
In weighing all of the relevant factors in this sentencing exercise, it is appropriate to impose penalties that are significantly more lenient than would otherwise be imposed in a commercial setting.
Rachel Martin [the SNAP carer] should be publicly commended for her bravery in pursuing Riley after he escaped from the vehicle. She acted without regard for her own safety to try to save Riley’s life. She showed extraordinary courage in doing so."
In NSW negligence is part of criminal law and is “such a great falling short of the standard of care which a reasonable person would have exercised and which involved such a high degree of risk that death or grievous bodily harm would follow…”Section 5.5 of the Criminal Code (Cth) states that negligence, in “respect to a physical element of an offence”, is established if conduct involves “such a great falling short of the standard of care” that it’s unreasonable, and this must involve “such a high risk” that it “merits criminal punishment”.
or more likely failed duty of care “In NSW a duty of care exists when a person has entity has a responsibility to take care to ensure the safety and wellbeing of another person or entity who is likely to be affected by their conduct. Where a duty of care is owed but not fulfilled, the person or entity owing the duty of care is said to be negligent” (Armstrong lawyers 2022)
A duty of care is breached when someone is injured because of the action (or in some cases, the lack of action) of another person when it was reasonably foreseeable that the action could cause injury, and a reasonable person in the same position would not have acted that way.(Gordan and Slater Lawyers)