Inquest into the death of Evan Greenwood [2011] NSWLC 37

Local Court New South Wales

Medium Neutral Citation: Inquest into the death of Evan Greenwood [2011] NSWLC 37 Hearing dates: 01/11/11 - 03/11/11 Decision date: 15 December 2011 Jurisdiction: Coronial Before: Magistrate van Zuylen Decision: See Recommendations at [29] Catchwords: CORONIAL INQUEST - death of 15 year old boy on skiing holiday - whether boundaries of ski resort adequately marked and maintained - whether ski resort and police protocols and procedures for handling missing person reports adequate - recommendations made Category: Principal judgment Parties: N/A Representation: Ms P Dwyer (for Mr Wayne Greenwood and Dr Jeanette Keir, the parents of Evan Greenwood) Sgt R Gordon (Prosecutor Assisting) Mr G Huggett (for Charlotte Pass Ski Resort and employees Karen Cooper and Peter McDonald) File Number(s): 35/2010

JUDGMENT 1Evan Greenwood died as a result of exposure and hypothermia on either 6 or 7 September 2010. He was on a family skiing holiday at Charlotte Pass Ski Resort. Evan was the dearly loved youngest son of his parents Mr Wayne Greenwood and Dr Jeanette Keir and brother to Keith and Brian. His tragic death has had a devastating effect on the whole family. Evan was 15 years old. 2Evan was an absolute joy to his parents. He had a wonderful singing voice and had recently been in his high school musical. Evan was diagnosed with autism spectrum disorder at the age of about 5 or 6. Although Evan had this disorder, he attended mainstream schools and after being in an Autism Support Class in 2009, he was being integrated back into mainstream classes in 2010 because he was doing so well. Since Evan's death, his school has created the, 'Evan Greenwood Memorial Award for Demonstrated Acts of Kindness and Caring towards other Students'. He had significant gymnastic ability and was a competent and confident skier. He had been skiing since he was 5 years old and his father estimated that he had been skiing for about 15 and a half weeks. Evan loved skiing and was really looking forward to his skiing holiday. 3A decision was made to hold an Inquest into the circumstances surrounding Evan's death because there were concerns expressed about the way Evan must have skied outside the ski resort boundaries, whether the Charlotte Pass ski area boundary was properly or appropriately delineated, were there proper procedures within Charlotte Pass for dealing with missing persons, was the search for Evan both by Charlotte Pass and the Police properly conducted and could an investigation of these issues lead to recommendations which could improve safety for persons skiing and prevent a tragedy such as Evan's death from recurring. 4Evan and his family left their home in Sydney on Saturday 5 September 2010 to travel to Charlotte Pass Ski Resort. Charlotte Pass is a ski resort located on the Kosciuskzo Road, approximately 8 kilometres south of Perisher Valley, during winter access is generally restricted to over snow vehicles. They planned to arrive that same afternoon but were unable to reach the resort as heavy rain had flooded Spencers Creek and so transport from Perisher Ski resort to Charlotte Pass was not running. The family finally arrived on Sunday afternoon, arranged ski gear and Evan skied till the lifts closed. 5Evan's family on the ski holiday was made up of his parents Wayne Greenwood and Dr Jeanette Keir, his older brothers Keith and Brian, and his 12 year old cousins Owen and Lindsay. On the morning of 6 September 2010, by the time everyone was dressed, breakfasted and organised, skiing commenced for everyone (including Evan) about 9.30am. A number of statements were obtained from people present at Charlotte Pass on 6 September 2010 and they all describe the weather conditions as cloudy, limited visibility, windy and with snow and rain at times. The last definite sighting of Evan that morning was by his mother at about 9.45 to 9.50am. Dr Keir skied for about 90 minutes and stopped due to it snowing and her having limited visibility. She returned to the lodge where they were all staying at approximately 11am and noticed everyone's ski gear was there except Evan's. She asked all the boys if anyone had seen Evan and none of them had. Evan's parents commenced looking for him and by 12 noon there was still no sign of him. 6Evan's parents at about 12.15pm advised a staff member at Charlotte Pass that he was missing. Mr Peter McDonald, who at that time was the Ski School Director, recalls at a little after 12.30pm overhearing a couple saying their son was missing. A radio call was made to staff to look out for him. Mr McDonald said that for the next hour and a half, people started searching lodges and the resort itself. No-one at Charlotte Pass Resort had authority to search outside the resort. 7In his statement, Mr McDonald says that by 2.08pm no-one had sighted Evan so he then rang the Perisher Police Station. Perisher police station is a "shop front Police Station" which is not permanently staffed. Mr McDonald's phone call was diverted to Jindabyne Police Station where he reported Evan missing. He told the police he wanted to notify them of the situation. His recollection is that the Police Officer advised him that he would see if any Police were at Perisher on skidoos, and if so, he would try and have them attend. Mr McDonald did not recall the name of the Police Officer he spoke to, but it was in fact Senior Constable Ian Petterson who was normally stationed at Penrith Highway Patrol but who was temporarily working for the winter at Jindabyne Police Station. 8Senior Constable Petterson has a different recollection of the telephone conversation with Mr McDonald. He agrees he had a conversation with Mr McDonald but he records in his statement and on the Missing Person Log for Evan Greenwood at 1350 hrs that he was told that the, "Missing person might be off enjoying the ski fields". He denies saying that he would arrange for police to attend on skidoos to commence a search. Mr McDonald denies saying that Evan might be off, "Enjoying the ski fields", and believed that he was advising them of the seriousness of the situation. I am unable to clearly determine what the exact conversation was between Mr McDonald and Senior Constable Petterson for a number of reasons. Neither person appeared to have a precise recollection of the exact words each person used, Mr McDonald was also attending to other duties as he was the ski school director at the time, Senior Constable Petterson wrote up his Log entry later when it became apparent that the situation was much more serious. Also, both persons' recollection may be influenced by the fact that Evan's body was found the next morning. In conclusion, it is clear that Senior Constable Petterson did not think being informed by Mr McDonald that Evan was missing, required him to take any further action. In his evidence, Senior Constable Petterson says he only became aware of the seriousness of the situation when he spoke to Mr Wayne Greenwood at about 1440. 9The Missing Person Log for Evan Greenwood states that Senior Constable Bolitho was informed at 1500. This entry in the log was written by Senior Constable Petterson. Senior Constable Bolitho has been the Alpine Operations Team Leader for 3 years. He has been a trained Police Rescue Officer for 10 years and a trained Police Search and Rescue Co-ordinator for 9 years. He is also a qualified ski patroller with 25 years of ski patrol experience. In his statement, Senior Constable Bolitho advises that he was informed that Evan Greenwood was missing, "At about 4pm". 10During the day, Mr David Mockridge, the Manager and Director of Tar Gan Gil Lodge which was where Evan and his family were staying, became aware that Evan was missing and became concerned. He said he was present when Peter McDonald contacted police and also looked for Evan on the ski slopes. He also expressed his concerns to Dr Keir of the urgency of the situation. He encouraged Dr Keir to keep on contacting the police and she rang '000' at about 1554 hrs. Senior Constable Bolitho, with police and other searchers, reached Charlotte Pass at about 1730 and commenced searching, including outside the ski resort boundaries. The search was suspended at approximately 2100 by Superintendent Garry Merryweather and was to recommence at first light the next day. Senior Constable Bolitho wanted to continue the search but was overruled by Superintendent Merryweather who was the senior police officer in charge of the search. 11The search for Evan resumed early the next day and his body was found by a group of cross-country skiers on a rock in the Snowy River, who were not connected to the search, at 11.30am. Dr Alexandra Tyson, a physician, was with the group and upon checking the body found no signs of life. Dr Tyson also gave evidence that it is impossible to calculate Evan's time of death due to it being caused by exposure and hypothermia. His body was found about 2.5km north of the main Charlotte Pass Ski Resort area. 12No person witnessed how Evan left the resort. The weather conditions of 6 September were windy and some snow was falling so any ski tracks that may have been made by Evan would have been covered up. Also, it appears that throughout the day people were searching the ski runs within the resort, and cross country skiers may have been skiing outside the resort, so there has been no convincing evidence available to suggest exactly how Evan skied out of the resort, nor the route he took once outside of the resort. 13Detective Senior Constable Stephen Hopkin was the informant police officer who compiled the Police Brief of Evidence and he was unable to locate any ski tracks that may have been made by Evan when he searched the area around where Evan's body was found. Detective Hopkin's opinion was that Evan did not travel outside the Charlotte Pass ski area from the top of Guthrie's Poma because the lift operator did not see him. Nor does he think he travelled outside the resort area from the Pulpit T Bar because you need to walk 30 to 50 metres uphill to ski outside the resort and most people would not walk uphill. Detective Hopkin believes the most likely route Evan took was either: - from the top of the Kosciuszko Triple Chair, where you can travel on the "Top of the World" run, which for a short period takes you over the other side of the ridge from Charlotte Pass and it is possible to become disorientated and ski under the ski boundary rope at the top of the run; or - further down the ski run (still on the "Top of the World" run) where there is a toilet block and Koscuiszko Road turning circle, where there is possibly no boundary rope at all. There are photographs taken of the ski boundary rope on 8 September 2010 which show the boundary rope strung between trees at heights greater than 173cm for a number of metres and also showing the rope boundary terminating at the Kosciuszko Road turning circle which are the places where Detective Hopkin believes Evan may have skied outside the resort boundary. Evan's mother, Dr Keir, was adamant that Evan would not deliberately ski outside the resort boundary. It seems likely that in the poor weather conditions of snow falling and restricted visibility Evan became disorientated and inadvertently skied outside the resort either where the rope was too high for him to notice it or where there was no rope at all. Once Evan was on the other side of the ridge from Charlotte Pass ski resort, by unknown means, his body ended up on a rock in the middle of the Snowy River. The Snowy River was flowing very strongly as a result of recent heavy rain. 14The maintenance of the ski area boundary ropes and signs is the responsibility of the Charlotte Pass Ski Patrollers. There are 3 Ski Patrollers employed at Charlotte Pass. The Inquiry heard evidence from Ms Karen Cooper who was one of the patrollers working at Charlotte Pass on 5, 6 and 7 September 2010. Ms Cooper has worked at Charlotte Pass Ski Resort since 2006 in various positions and commenced as a ski patroller in 2009. In 2010 she was offered and accepted the position of Director of the Ski Patrol although she does not get any extra income for that role. She agreed that there is a Ski Patrol Manual for Charlotte Pass, which sets out a large number of duties and procedures, one of which is, "Boundary ropes and dam closure ropes should also be checked daily." She stated she was aware of the manual and also pointed out that boundary ropes and signs can be disturbed by things such as being blown over by wind or buried by snowfall. Ms Cooper, during cross-examination, expressed the view that, in her opinion, the boundary ropes should be a 'visual deterrent' rather than a physical one. She said that since Evan's death, the boundary rope has been extended and there have been other improvements in resort boundary signage. Ms Cooper was also asked, in her experience, how many reports of missing persons does she hear of during a ski season. Her opinion was that she thought approximately 10 or 20 were reported missing, depending on the season. Ms Cooper participated in the search for Evan within the resort and said, "We were so distraught at Evan's death". 15From staff at Charlotte Pass Ski Resort being informed that Evan was missing at around 12.15pm to 12.30pm, until the police and other searchers arrived at approximately 5.30pm, searching was conducted by up to 80 volunteers, including ski patrollers and lift operators, who continued to search within the Resort boundaries and in the lodges. Whilst everyone involved in looking for Evan no doubt tried to do their best, it appears that from all the evidence presented to the Inquest, the search was uncoordinated and no one was effectively controlling what was happening. In her statement of 30 September 2010, Dr Keir said, "Staff from Charlotte Pass seemed to be inexperienced in this situation. They were unable to provide us with clear information about their search procedures and protocols or what was going on. There did not appear to be one person in charge, and no one person in control of the situation". No material was presented to the Inquest which showed that the resort had any protocol or guidelines as to what should happen in the event of a person being reported missing in circumstances such as occurred with Evan, even though the ski patroller Karen Cooper says they may have up to some 10 to 20 reports of missing persons each ski season. 16As stated earlier, Mr McDonald, at the time the Charlotte Pass Ski School Director, reported Evan missing to Jindabyne Police Station at around 1350 hours. Also, the Court is unable to decide what were the exact words spoken by Mr McDonald and Senior Constable Petterson. Clearly, Senior Constable Petterson did not take any action as a result of that first phone call reporting Evan missing. The court had tendered to it as an exhibit, a document from the Police headed, "Joining Instructions and Induction". This is a document provided to the additional police who come to Jindabyne Police Station to assist during the winter ski season. At page 11 of this document is a paragraph headed, "Calls for Police Assistance within the Kosciuszko National Park", and says underneath that heading, "When jobs are received relating to concern for welfare, missing persons and assistance with medical retrievals obtain all relevant information then immediately [bold type is in the document] notify and brief the Jindabyne Supervisor." Quite clearly, Senior Constable Petterson, who at the very least was informed as to concerns for Evan's welfare and was in Kosciuszko National Park, did not carry out this requirement as stated in the Induction Document. In his evidence, Senior Constable Petterson did not appear to have any familiarity with this paragraph in the Induction Document. Monaro Local Area Command does have an Induction Day at the beginning of the ski season for extra police selected to perform duties as part of the Jindabyne / Alpine Lakes Sector of the Monaro Local Area Command during winter. The Court heard that Senior Constable Petterson arrived at Jindabyne after the Induction Day, but would have had a copy of the Induction Document emailed to him. The issue of induction and familiarisation with those procedures unique to the Monaro Area Command for the extra police who come during winter is an important issue that the Police should address. There was an unacceptable delay between the first report of Evan missing made to police at 1350 - there being other calls by Wayne Greenwood to police at around 1440 to 1500; Mr David Mockridge also calling police at about 1530; Dr Keir's phone call to '000' at around 1600; and Senior Constable Bolitho, the Alpine Operations Team Leader at Jindabyne, stating he was informed at around 1600 hours - and the eventual arrival of the search team at around 1730. The effect of this lack of communication and delay is that the Police Alpine Operations Unit lost the opportunity to search for Evan for up to possibly 3 and a half hours on the afternoon of 6 September. As Senior Constable Bolitho said in his statement, time is critical when responding to lost skiers in poor alpine weather, because in Evan's case, the time frame for survival for someone of his age, in the clothing that he was wearing and immersion in the Snowy River, could be as little as 4 to 5 hours. 17Senior Constable Bolitho and other members of the search team arrived at about 1730. The hour and a half it took for the search team to be assembled and travel to Charlotte Pass was an appropriate time. Upon his arrival, Senior Constable Bolitho took control of the search and Dr Keir described them as competent and experienced, which she said was in contrast to what had been taking place. The search continued until it was called off at 2100. 18The decision to suspend the search at 2100 was made by Superintendent Garry Merryweather who at that time was the Commander of Monaro Local Area Command and in charge of the search. The Court heard evidence from Senior Constable Bolitho and Mr Bruce Dowling from NSW Fire Brigades (who was also searching for Evan) that they both wanted to continue searching for Evan that night as they thought the conditions were good enough to keep looking. 19Superintendent Merryweather had not made a statement to the Inquest but agreed at very short notice during the Inquest to give evidence and be cross-examined by telephone. He said he was aware that Senior Constable Bolitho wanted to continue the search but he made the decision to suspend the search at 2100 for a number of reasons including his concerns for the welfare of the people out searching, the weather conditions, it was dark, there were restricted radio communications, they did not know where Evan was, there was a 2 hour travel time to and from Jindabyne and the search was to resume with more resources at first light the next morning. The Inquest has been asked to accept the knowledge, expertise and opinions of Senior Constable Bolitho and Mr Bruce Dowling and criticise the decision of Superintendent Merryweather to suspend the search. After hearing all the evidence on this issue, the Inquest does not consider that the decision to suspend the search was an incorrect one. Superintendent Merryweather appeared to have a good knowledge of all the issues involved and his decision appeared justifiable in the circumstances. 20A difficult issue that must be considered is whether the supervision of Evan by his parents at Charlotte Pass was appropriate. Whilst the Inquiry did not hear any criticism of Evan's parents, I formed the strong impression that Dr Keir, particularly, has given this matter a great deal of thought. Evan was 15 years old and had been diagnosed with autism spectrum disorder. He had been skiing since he was 5 years old. His parents described him as by far the best skier in the family and he loved skiing. No one in the family could keep up with him. Dr Keir and Mr Greenwood were on a family skiing holiday with his older brothers Brian who also has autism spectrum disorder, Keith who also has disabilities, and their nephews who were 12 years old and had never skied before, so there were no doubt many conflicting demands on their time during their ski holiday. Dr Keir had changed the resort they skied to Charlotte Pass because she felt it was a smaller and safer resort. The family had skied at Charlotte Pass two times before and Evan had skied for a couple of hours at Charlotte Pass the afternoon of 5 September. On the morning of 6 September, Dr Keir was on the slopes skiing on the same runs as Brian, Keith and Evan, whilst her twin nephews were having a lesson. It was snowing and there was poor visibility so it must have been difficult for her to keep a lookout for all her family who were out skiing. Mr Greenwood had not commenced skiing that morning as he had a lesson at 2pm and did not want to tire himself out. Whilst he was at the lodge, he noticed that Keith and Brian had returned to the lodge from skiing at about 10.15am. He asked them where mum and Evan were and he was told they were still out skiing. Dr Keir noticed Evan missing at 1100 and, with Mr Greenwood, they took every reasonable step to immediately start looking for him. They informed Charlotte Pass Ski Resort by 1215 of him being missing and subsequently notifyied the police. Dr Keir had a very close relationship with Evan and said that she always stressed safety rules to him. I do not consider that there is any reason to criticise the supervision arrangements that Dr Keir and Mr Greenwood had in place for their son Evan. 21There were other issues that were raised in evidence heard by the Inquest and which I was invited to make recommendations on, such as: - There is no 24 hour police station at Perisher and if police were stationed there, that would have shortened the time taken for the searching party to arrive at Charlotte Pass - Radio communications in the Kosciuszko National Park are not very good and this to some extent hampered communications during the search for Evan - There is an ongoing dispute over who has responsibility for the maintenance of the road between Perisher and Charlotte Pass and the state of the road possibly delayed the search team in getting to Charlotte Pass Without in any way downplaying the general importance of these issues, the Inquiry, after hearing the evidence, came to the view that none of the abovementioned issues were a significant factor in the tragic circumstances surrounding Evan's death. 22This Inquest has not tried to attribute fault or make findings in relation to negligence or duty of care but after considering all the evidence, there are a number of criticisms that can be made. 23There were inadequate and/or non-existent procedures at Charlotte Pass for how to deal with reports of missing persons. No person at the resort had designated responsibility for organising or co-ordinating any efforts to look for missing persons, nor for contacting police. The search for Evan, before Police and other searchers arrived, appeared to be disorganised and haphazard. This is a significant criticism of Charlotte Pass Ski Resort as it accommodates up to 600 people during the ski season and it is not unusual for persons to be reported as lost. 24The Charlotte Pass ski area boundary markings appeared to be inadequate at the places where it is likely Evan inadvertently skied out of the resort. They need to be improved. Boundary ropes strung between trees at a height of greater than 173 cm or no boundary rope at all where there is a recognisable risk of persons skiing outside the resort at that place are insufficient. 25Police procedures and training at Jindabyne Police Station for how staff should deal with reports of missing persons in Kosciuszko National Park need to be reviewed. Whilst it is clear that Senior Constable Petterson did not carry out the procedures in accordance with the Induction Package for what should be done for reports of missing persons in the Kosciuszko National Park, he did not attend an Induction Day nor is it clear that he was made properly aware of the reporting requirements, as set out in the Induction Package, for missing persons such as Evan. The Inquest is also critical of the delay between the receiving of the first phone call by police at about 1350 and Senior Constable Bolitho (one of the police officers trained and qualified to organise and co-ordinate a search for a missing person in Kosciuszko National Park) being informed at around 1600. 26The Inquest received a number of suggested recommendations from Sergeant Rod Gordon the prosecutor assisting, Ms Dwyer the barrister appearing for Dr Keir and Mr Greenwood and Mr Huggett the solicitor for Charlotte Pass Ski Resort and Mr McDonald and Ms Cooper. It thanks them for their detail and thoughtfulness. The Police Prosecutor, in his closing submissions, stated that missing persons should be immediately reported by way of a '000' call so that the report is immediately logged and appropriate action taken. 27After listening to all the evidence in the Inquest, I have come to the view that: the signage and state of the boundary ropes at Charlotte Pass Ski Resort must improve, there must be the adoption of clear and well publicised procedures and guidelines for what to do in the event of receiving a report of a missing person at Charlotte Pass Ski resort which must include the immediate reporting of the missing person to 000. Training and induction procedures for Police at Jindabyne Police Station, particularly for those police who come to Jindabyne temporarily for the winter, for what they must do in the event of receiving a report of a missing person in Kosciuszko National Park, must also improve. 28Finally, this Inquest hopes that the adoption of the following recommendations will prevent the circumstances surrounding the tragic death of Evan Greenwood from recurring. 29RECOMMENDATIONS To Charlotte Pass Ski Resort (1)I recommend that Charlotte Pass Ski Resort undertake a review of the signage, ropes and boundary markers, which define the ski area boundary. The purpose of this review must be to minimise the risk of a skier inadvertently skiing past the resort boundary. (2)I recommend that Charlotte Pass Ski Resort implement a policy that all boundary ropes and signage are checked and maintained daily during the ski season. Boundary ropes must be at a height which acts as both a physical and visual boundary. (3)I recommend that Charlotte Pass Ski Resort develop and implement clear and appropriate guidelines or protocols for how they deal with reports of missing persons. The guidelines or protocols implemented must include a requirement that 000 be immediately contacted. To the Minister for Police (1)I recommend that all staff at Jindabyne Police Station be trained that when they receive any calls relating to concern for welfare or missing persons in the Kosckiuszko National Park, they must immediately notify and brief the Jindabyne Supervisor. (2)I recommend that induction procedures for extra staff and police who perform duties as part of the Jindabyne / Alpine Lakes Sector of the Monaro Local Area Command during winter be reviewed and improved, particularly for procedures in relation to calls or jobs received relating to concern for welfare or missing persons in Kosciuszko National Park. I direct that a copy of this decision and recommendations also be sent to: - Perisher Ski Resort - Thredbo Ski Resort - Selwyn Snowfields for them to review and, if appropriate, improve their own policies, procedures and guidelines for ski area boundary signs and ropes, and what procedures they adopt and carry out when they receive reports of missing persons. Magistrate van Zuylen Cooma Local Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 March 2012