Pearl company charged two years after diver died on their second day on the job

A Western Australian pearl company has been charged by Worksafe with one count of failing to provide and maintain a safe working environment, two years after the death of one of its divers.

The family-owned company, Paspaley Pearling, has been criminally charged by Worksafe WA for the workplace death and faces a maximum penalty of $200,000 under the Occupational Safety and Health Act.

Twenty-two-year-old Jarrod Hampton drowned on his second day working for Paspaley Pearling as a drift diver off Western Australia’s Kimberley coast in April 2012.

Hampton was collecting shells from the sea bed while being towed underwater, but made an emergency ascent to the surface on April 14. Crew members attempted to help Hampton, but he died at the scene.

An investigation found his death was consistent with drowning.

The Darwin-based company was charged by Worksafe WA yesterday and the case is expected to be heard in the Broome Magistrates Court later this year.

While SmartCompany could not reach the company for comment before publication, at the time of the incident Paspaley released a statement saying Hampton’s death was a terrible tragedy and that safety was its highest priority.

Hampton’s parents have told the ABC they were “gutted” that Paspaley had not been charged with a more serious offence as they hoped it would lead to increased safety in the industry.

“We want Jarrod back, you know, and we’re not going to get that,” Tony Hampton told ABC radio.

“We don’t want him to have died for nothing. We want some sort of justice.”

Last year, the Maritime Union criticised the length of time the investigation was taking, suggesting other divers were being put at risk by a lack of action.

But Andrew Douglas, lawyer at M&K Lawyers, told SmartCompany an attack on the process of the investigation would be misconceived.

“Far too often these issues are industrialised,” says Douglas. He says investigations usually last around a year, especially in complex cases such as this, because investigators need to collect and analyse a substantial amount of evidence.

“The regulator isn’t trying to slow it down,” he says. “These investigations take as long as they take.”

Douglas says the greater issue in this case is Western Australia’s lax workplace penalties, which are different and considerably less than the rest of the country.

He says it is likely a greater charge would have been brought against Paspaley if the case happened outside of WA.

“The person that does the worst act in WA has a lesser liability than someone in Victoria who commits a medium offence,” says Douglas.

Douglas says WA does not have a reckless endangerment change at all and the laws it does have are difficult to prove and rarely prosected.

“It is out of alignment with the rest of the country,” he says.

Douglas says the Western Australian government is unlikely to adopt the reforms other state and territories have in recent years, despite the state having the highest concentration of high risk workplace activities.

“What this shows is how much better it would be if Western Australia joined the reformed legislation… how much simpler and more predictable it will be for Australian industry,” he says.