Court in father-son drowning case hears that Airlie Beach Lagoon lifeguard contractor had no ‘relevant’ experience

A multi-million-dollar lawsuit in the Queensland Supreme Court over the drowning deaths of a Chinese father and child at Airlie Beach’s lagoon attraction in October 2018 has heard conflicting accounts over the pair’s final moments.

Jie Tan, whose husband Yuanwei Zhang and five-year-old son, Chenxi, died in the incident, is suing Whitsunday Regional Council (WRC) and its lifeguarding contractor, Ellmill Enterprises for $4.5 million (21 million yuan) in damages.

As reported by the ABC, documents lodged in the Court in Mackay show very different accounts of the incident that shattered the young family which were visiting from China.

Claiming negligence on the part of the Council and contractor, Tan’s lawyers submitted Zhang was swimming near the bridge over the lagoon with his son on his back, when he ventured into an area where the bed of the lagoon dropped sharply.

They said the depth was about 2 metres and Zhang could not touch the bottom and the pair "quietly submerged", with no calls for help or signs of distress.

The submission noted “it was a windy day and ripplets obscured the ability of those on the land to observe the floor of the lagoon.

"No lifeguard or person noticed Mr Zhang or Chenxi consistently submerged."

However, the Council, which operates the lagoon, disputes those claims and said the change in gradient was "gradual".

Its submission stated "when Mr Zhang began to experience difficulty he struggled to stay afloat before sinking.

"Then Chenxi struggled to stay afloat before sinking."

WRC acknowledged there were blind spots at the lagoon but argued the incident did not happen in a blind spot.

The documents also suggested a female tourist observed the father and son under water.

The documents show that in June 2017, the Council released tenders for the lifeguard services of the lagoon, which had previously been provided by another operator.

Ellmill Enterprises, which provided pool maintenance services, with reportedly no relevant experience in the provision of lifeguard services, was awarded the contract in September 2017.

As part of the defence to the claim, lawyers for Ellmill Enterprises said WRC failed to implement a number of recommendations made to it in a report while also alleging that the Council failed to direct the company about the appropriate number of lifeguards required for the site and their optimal positioning, as well as training.

The advice to the Council had reportedly also suggested that that depth signage a the lagoon should be improved and foliage reduced to improve visibility while also recommending that the change in gradient be highlighted by contrasting colours through tiles or painted lines.

The lawyers for Ellmill Enterprises also argued the Council failed to undertake regular audits, at least on a regular basis, that would have identified deficiencies and allowed them to be rectified.

In response, WRC’s lawyers admitted it did not implement the recommendations, but noted that it “doesn't believe it was required to implement the recommendations to discharge a duty of care."

The Council, which is denying negligence, stating that none of the recommendations were necessary conditions of the drownings, said additional signage was not required with current signs "adequate and appropriate".

Two lifeguards were on duty at the time of the incident and were roughly 20 metres away from the father and son, when they got into trouble, within their line of sight.

Court documents allege the pair was standing together on the bridge and talking, with WRC saying that the deaths were caused by the negligence of the lifeguards.

Its submission alleges “the second defendant (Ellmill Enterprises) was breached because they failed to provide services that were performed with skill, care and diligence.”

The matter is due to return to mediation next month.

A preliminary trial date has been set for early next year if agreement cannot be reached.

Images: The lagoon at Airlie Beach top, (below, credit: Whitsunday Regional Council) and Yuanwei Zhang, Jie Ta and their son Chenxi before the 2018 tragedy (below, supplied).