Coroners Act, 1975 As Amended s12

CORONERS ACT, 2003

SOUTH AUSTRALIA

FINDING OF INQUEST

An Inquest taken on behalf of our Sovereign Lady the Queen at Kangaroo Island and Adelaide in the State of South Australia, on the 5th, 18th and 19th days of July 2006, and the 10th day of August day of 2006, by the Coroner’s Court of the said State, constituted of Mark Frederick Johns, State Coroner, into the deaths of Dougal Smart and Daniel O'Donnell.

The said Court finds that Dougal Smart aged 32 years, late of 148Tryst Park, Edinrugh, Scotland died at Remarkable Rocks, Flinders Chase Flinders Chase National Park, Kangaroo Island, South Australia on the 9th day of November 2003 as a result of salt water drowning.

The said Court finds that Daniel O'Donnell aged 38 years, late of Gosse Ritchie Road, via Parndarna, Kangaroo Island died at Remarkable Rocks, Flinders Chase National Park, Kangaroo Island, South Australia on the 9th day of November 2003 as a result of salt water drowning.

The said Court finds that the circumstances of their deaths were as follows:

1. Introduction

1.1. On 9 November 2003 a tragic incident occurred in the vicinity of Remarkable Rocks, Kangaroo Island, in the State of South Australia. Dougal Smart, then aged 32 years, of Edinburgh in Scotland, and Daniel O’Donnell, then aged 38 years, of Kangaroo Island, South Australia, died after being washed into the water while attempting to rescue another man, Mr Tobias Bruns, who had previously been swept into the water. Both Mr O’Donnell and Mr Smart were drowned in their attempt to rescue Mr Bruns. Ironically, Mr Bruns survived the episode.

1.2. Post mortem examinations for Dougal Smart and Daniel O’Donnell were performed by Dr John Gilbert of the Forensic Science Centre on 11 November 2003. In the case of Dougal Smart, the cause of death was found to be salt water drowning. Dr Gilbert reported that there were numerous multidirectional brush abrasions over Mr Smart’s face, chest, upper arms, hands, back, left forearm, knees and shins. Dr Gilbert expressed the opinion that these abrasions would have resulted from wave action brushing the deceased’s body against rocks, although some may have occurred during his initial fall into the water.

1.3. Dr Gilbert found that the cause of death of Mr Daniel O’Donnell was salt water drowning. He reported linear abrasions over his face, and circular abrasions over his knees, shins and his left shoulder. Again, these abrasions were reported to be consistent with Mr O’Donnell’s body being washed against rocks. The abrasions on the undersides of the tips of his fingers were consistent with him attempting to gain a purchase on a rough rocky surface. The post mortem report for Dougal Smart was admitted as Exhibit C19 in these proceedings, and the post mortem report for Daniel O’Donnell was admitted as Exhibit C20.

1.4. The Inquest heard evidence from the investigating police officer, Senior Constable Sean Harrison, Mr Dale Smithyman, who was a Ranger at Flinders Chase National Park at the relevant time, from Mr Michael Grimes, a deckhand on the cray fishing boat “Rosandra” who was involved in the recovery of the bodies of Mr Smart and MrO’Donnell from the water, from Dr John Gilbert, the forensic pathologist who conducted examinations of the deceased, from Ms Annette Kappler, a Health and Safety Inspector with SafeWork SA and from Mr Mark Herrmann, who was and is the Conservator of Kangaroo Island, and is an officer of the National Parks and Wildlife Service with responsibility for Flinders Chase National Park. In addition, a number of exhibits were tendered, including statements made by a number of eyewitnesses to the events of 9 November 2003 at Remarkable Rocks. Unfortunately, none of these witnesses could conveniently be called at the Inquest because they were visitors from overseas who were holidaying in South Australia at the relevant time. They were members of a tour group which included Dougal Smart and Tobias Bruns, and was led by the tourism operator, Mr Daniel O’Donnell, who was operating a business by the name of “Daniel’s Tours”.

1.5. The events, told from the perspective of members of the tour group, may be gleaned from Exhibits C5a, C6a, C7a, C8a, C11a, C12a, C13a and C14a. Exhibit C9a is a statement of Tobias Bruns which I will deal with separately.

1.6. As I have already stated, Dougal Smart and Tobias Bruns were amongst a group of tourists who arrived on Kangaroo Island in the days preceding 9 November 2003 for the purpose of attending a tour group being conducted by Daniel’s Tours which was run by Daniel O’Donnell. 9 November 2003 was a Sunday. Most of the members of the tour group arrived on Kangaroo Island on the preceding Friday. The members of the tour group then congregated at accommodation provided by Daniel’s Tours at a farming property close to Kingscote. On the Saturday, members of the tour group stayed on Daniel’s farm and visits were made to various locations on Kangaroo Island. Early on the morning of Sunday 9 November 2003 the group arranged to visit Flinders Chase National Park. The party left Daniel’s farm at approximately 7:45am that morning in a bus driven by Daniel O’Donnell. The group arrived at Remarkable Rocks between 8:15 and 8:30am that morning. A number of members of the tour group recalled that in the trip to the rocks Daniel O’Donnell used the public address system on the bus to talk to them about the rocks. He advised that they were dangerous and very slippery and very steep. The witnesses Jody Morris[1], Rebecca Tea[2], Alisdair Clark[3], Annika Born[4], Andreas Burkart[5], Isabelle Bogaers[6], all gave an account of Daniel O’Donnell having briefed them carefully about the dangers of the rocks, the strong winds, and one person had a recollection of him having informed the group that people had previously been swept from the rocks into the water by large waves. The only member of the group who specifically stated that he was not given any special instructions about what to do at the rocks was Tobias Bruns. MrBruns stated that he was not warned by anyone not to go down to the waters edge. He also stated that there were no signs or warnings advising not to approach the waters edge. As will appear in due course, there were a number of warning signs in place in 9November 2003. A number of the other eyewitnesses gave accounts in which they clearly recalled the presence of such signs. Mr Bruns’ account is at odds with that of all other members of the group.

1.7. Perhaps the best account of the events leading to Mr Bruns falling into the water, and the fateful rescue attempt, is the account of Alisdair Clark contained in Exhibit C11a. Mr Clark stated that sometime after the arrival at the rocks he saw Tobias Bruns walking towards the bottom of the rocks. Mr Clark said that he called out to MrBruns to be careful, and that Mr Bruns yelled back that he would be “okay”. Shortly after this, Mr Clark said he heard someone yelling out for help from the waters edge and turned around. He could then see Mr Bruns in the water just out from the rocks and he immediately raised the alarm with Daniel O’Donnell. Daniel O’Donnell, Dougal Smart and Mr Clark and another member of the group called Jody ran towards the waters edge to get a better look. Daniel O’Donnell and Dougal Smart grabbed a life buoy attached to a sign and went to the rocks at the waters edge. Daniel O’Donnell then threw the life buoy into the water towards Mr Bruns but it was washed away from Mr Bruns. Mr Clark stated that “a huge wave came up and swept Daniel and Dougal from the rock they were on sweeping them into the water.” The witness Jody Morris[7] described this as follows:

‘All of a sudden a wave come out of nowhere and took Daniel and Dougal off the rocks and into the sea. The water was very spasmodic and wasn’t very calm, every now and then it would get a bit rough for about 5 minutes.’

1.8. Rebecca Tea, a witness from England, whose statement is Exhibit C13a said that, having seen the people washed into the water she went back to Daniel’s vehicle to see if they could drive it back to get help. There was no radio in the vehicle and their mobile telephones did not have reception. She was unable to find the keys at first but after some ten or fifteen minutes she located the keys. She went back to the rocks and she and Mr Burkart[8] then drove Daniel’s vehicle back towards the direction of the Rocky River Visitor Centre at Flinders Chase National Park. On their way, they met another tour bus, being driven by Mr Jason Lauridsen of Wayward Tours who was then able to raise the alarm using his mobile telephone which apparently had reception. It may be that Jason’s mobile telephone was a CDMA mobile, as other evidence before the Inquest indicated that some CDMA telephones would have reception on the rocks and in the vicinity of the rocks, although normal mobile telephones did not.

2. Mr Dale Smithyman

2.1. At this point it is convenient to continue the narrative from the perspective of MrDale Smithyman who gave evidence at the Inquest. I have already stated that MrSmithyman was a Ranger at the Flinders Chase National Park in November 2003. Through him, the National Parks and Wildlife Service communications log of the day’s events was tendered[9]. Mr Smithyman stated that he was on patrol that day and his duties included general enforcement of the National Parks and Wildlife Act in the Flinders Chase National Park. He was the only Ranger in charge of the entire western end of Kangaroo Island on that day. When he arrived at the Flinders Chase Visitor Centre at Rocky River, it was just after 9:00am. Another staff member, Ann Warner, informed him that a report had come in that people were in the water at Remarkable Rocks. The communications log[10] shows that this report came in from Mr Lauridsen at 9:10am. The log show that at 9:12am, Mr Smithyman reported the situation to Anthony Maguire, the Senior Ranger and Duty Officer at Penneshaw that day. The report was to the effect that persons were in the water at Remarkable Rocks, that MrSmithyman was going to investigate and that he would also activate emergency services. The communications log then shows a 000 call by Anthony Maguire at 9:15am, and a further 000 call seeking ambulance assistance at 9:20am.

2.2. Mr Smithyman said that before leaving the office at Rocky River he gathered together some basic medical emergency equipment, including oxygen, an ambulance kit, radios, spare batteries and a mobile telephone, and departed Rocky River for Remarkable Rocks.

2.3. On arrival at the Remarkable Rocks, Mr Smithyman was met by Jason Lauridsen, the operator of Wayward Tours and they ran together down the boardwalk leading to the rock and proceeded to the top of the dome of the rock where a group of people had gathered together. They pointed out to Mr Smithyman the location of Mr O’Donnell and Mr Smart and Mr Bruns in the water.

2.4. Mr Smithyman observed that there was one person face down in the water approximately 100 metres due south from Remarkable Rocks. Some distance away, south west of the rock, and approximately 150 metres from shore, there were two people together one of whom appeared to be supporting the other. Shortly afterwards, the two people in the water separated from one another and one of them moved towards the shore and was able to climb out onto the rocks. The other person remained face down in the water. The person who managed to escape from the water was Mr Bruns.

2.5. At about this time Mr Smithyman noted the presence of three cray fishing boats some distance offshore and he requested that the Regional Duty Officer try to contact these boats to obtain assistance from them. According to the log[11] at 10:06am MrSmithyman was reporting to the office at Flinders Chase the fact that the cray fishing boats were turning towards Remarkable Rocks. As the boats neared Remarkable Rocks, Mr Smithyman was able to make contact with them directly via the incident control centre at Penneshaw. Apparently Mr Maguire who was at Penneshaw relayed Mr Smithyman’s signal to the cray boats. The boats came in quite rapidly and pulled up short of the rocks. One of the cray boats lowered a zodiac and the crew of the zodiac recovered the bodies and returned them to one of the cray boats. That boat then departed. Mr Smithyman subsequently learnt that it went to Vivonne Bay where the deceased were handed over for transport to the hospital at Kingscote.

2.6. Mr Smithyman gave evidence that Mr Bruns had made it out of the water but was still in the wash zone. He asked Jason Lauridsen to go down and assist Mr Bruns up to the dry rocks in case he collapsed and fell back into the water. Mr Bruns was encouraged to climb up to a flatter rock which was out of the wash zone and he remained there until he was airlifted out. Shortly after this, a volunteer ambulance crew arrived from the nearest location namely Gosse. Volunteer ambulance officers Buck and Anderson were the attending officers and were in fact the first emergency services to arrive. This was some 45 minutes after Mr Smithyman’s arrival at the rocks. He stated in evidence that there is “quite a response time” for emergency services to attend locations at that end of the island because of its remoteness.

2.7. Shortly after the arrival of the ambulance officers Senior Constable Harrison arrived at the scene. Mr Smithyman then briefed Senior Constable Harrison on what had transpired and what was happening at the time. Mr Smithyman then handed over control of the scene to Senior Constable Harrison who spent a considerable amount of time reporting to police communications in relation to necessary matters. Shortly afterwards, Ms Reeves from the Ambulance Service arrived – she is the most senior person in the South Australia Ambulance Service on Kangaroo Island. A short time after her arrival the State Emergency Services personnel arrived. The Gosse ambulance crew had by this stage made it down to the rock on which Mr Bruns was perched and the State Emergency Services volunteers joined them shortly after their arrival. Two media helicopters then arrived and then shortly afterwards, the State Rescue helicopter attended.