Australia - Army to be prosecuted over soldier's drowning

The army has been charged over the "entirely preventable" death of a soldier who drowned in a lake last year after a series of safety failures. 

Fresh from Anzac Day celebrations, army commanders are now preparing to front up in court to answer a charge that they failed to take all practicable steps to ensure the safety of Private Michael Ross, who drowned when he fell out of an inflatable boat on Lake Moawhango near Waiouru on September 25.

The charge has been laid under the Health and Safety in Employment Act by the Ministry of Business, Innovation and Employment, which has taken over workplace safety prosecutions from the old Labour Department. 

The Sunday Star-Times understands army representatives will appear in the Taihape District Court on May 6, and a guilty plea is likely. 

It caps a bad week for the army, which admitted that two soldiers were injured by "friendly fire" during the ambush in Afghanistan last August which killed Lance Corporals Pralli Durer and Rory Malone. 

The Star-Times revealed last month that the gas canister in Ross's lifejacket was later found to have been empty, meaning he never stood a chance when he fell into the water in full combat gear with a machinegun strapped to him. 

He fought bravely to stay afloat, and was able to stay above the water for more than a minute, but engine trouble meant the inflatable was unable to turn around to rescue him. 

There was also no safety boat alongside, a breach of standing orders. 

After the Star-Times story, Defence Minister Jonathan Coleman admitted inquiries into the death had found it was "entirely preventable" and the Defence Force should prepare for some "painful lessons" on how it handled the safety of personnel. 

Ross's mother, Eileen Ross of Auckland, said the family had been kept informed of the health and safety prosecution by the ministry. 

She said the army was as devastated as the family by what happened. 

"It's a very sad situation for us, there are no winners in things like this, it's just really, really hard. It's not like your son got murdered - the army admits everything and is upfront about it."

She hoped lessons could be learned from the tragedy. 

"Nothing is going to change our situation, but hopefully for future soldiers this is what this [the prosecution] is about." 

It is rare for one government department to prosecute another but it is the second time the army has been charged under workplace safety legislation. 

In 2006, police laid charges under health and safety laws over a Unimog all-terrain vehicle crash near Hunterville, in which a soldier - unrestrained in the back of the vehicle - was seriously injured. A civilian in another vehicle was killed.

During their investigation, police pulled over s

everal other Unimogs and in one case found four soldiers sitting on school chairs and one on a drum of wire, and in another case 18 recruits were unrestrained on the vehicle floor. 

The army faced a $250,000 fine but it was waived because of a legal loophole that stops money being transferred between government departments. 

It is unclear whether any compensation will be paid to the Ross family. 

Former army chief Lou Gardiner said he was surprised there was not a quick-release button that would have allowed Ross to drop his heavy equipment when he fell into the lake. 

The fact that the lifejacket had not been marked as unserviceable was "just unacceptable stuff in anybody's language. I don't know who's going to be charged, but certainly someone's got to be held accountable". 

Gardiner said the army would learn from its mistakes, "that's one thing the army's good at". 

But no matter how many standard operating procedures were in place, "you're still relying on people following them, there's still a human factor in there, and when people get casual, accidents happen". 

A PREVENTABLE DEATH 

 

Michael Ross was one of eight soldiers in an inflatable boat returning from a live firing exercise on Lake Moawhango last September. 

They were wearing RFD, 60B lifejackets provided by the air force, which are inflated by pulling a tag to activate a CO 2 cylinder. 

The boat was not inflated properly, causing it to bounce around.

When it hit a wave, Ross, who was sitting up front, fell in. 

The soldiers needn't have been wearing full combat gear – standing orders enabled them to pack their equipment in dry bags for return journeys across the lake. 

Ross screamed that he could not inflate his jacket. Because of engine trouble, the inflatable could not return to him in time. 

The inflatable had crossed the lake without a safety boat, a breach of standing orders. 

The pilot of the safety boat raced to the scene, but left behind a medic and diver, another breach.

Ross eventually sank, and his body was not recovered for a week. 

When it was retrieved, it was found the gas canister was empty. 

It is understood it may have been tampered with. 

The lifejacket had last been serviced on August 3. 

All of the army's 410 RFD jackets were later tested and found to be functional.