Whitsunday Regional Council denies responsibility over double lagoon drowning

A north Queensland council and the company it contracted to run lifeguard services at a popular lagoon where a father and son drowned have cast blame on each other over the double tragedy.

Tributes were left at Airlie Beach Lagoon after a Chinese man and his five-year-old son drowned in October 2018.

A north Queensland council and the company it contracted to run lifeguard services at a popular lagoon have cast blame on each other over the double drowning of a holidaying father and son at the top tourist spot.

Ellmill Enterprises Pty Ltd has alleged in court documents it informed Whitsunday Regional Council it had “no relevant experience” in providing lifeguard services before it took over the contract prior to the deaths at Airlie Beach lagoon in 2018.

Two on-duty lifeguards were on a bridge, allegedly talking, 20 metres from where airline pilot Yuanwei Zhang and his son Chenxi, 5, slipped beneath the water about 3.40pm on October 28, 2018 and did not resurface alive.

Tributes were left at Airlie Beach Lagoon after airline pilot Yuanwei Zhang and his son Chenxi, 5, of China, drowned on October 28, 2018.

Tragically their bodies were pulled from the water – Mr Zhang at 3.46pm and Chenxi at 3.53pm.

The pair, from China, had been holidaying in the Whitsundays with wife and mother Jie Tan, who has since filed a supreme court lawsuit totalling $4.3m alleging negligence on the part of Whitsunday Regional Council and Ellmill Enterprises Pty Ltd.

But each has alleged the other is at fault for the deaths with the legal tussle revealed in defence paperwork and counterclaims filed in the supreme court.

Ellmill Enterprises claimed Mr Zhang, with Chenxi on his shoulders, moved to an area within the lagoon where the bottom “dipped sharply so that it was two metres deep and where Mr Zhang could not touch the bottom”.

“Mr Zhang and Chenxi quietly submerged,” the claim stated.

“It was a windy day and the ripples on the water obscured the ability of those on land to observe the floor of the lagoon.”

Ellmill Enterprises has also claimed the pair were only submerged for about five minutes before their bodies were retrieved.

“In the interim neither the lifeguards nor any other person in or around the lagoon noticed that Mr Zhang or Chenxi had been consistently submerged,” the counterclaim stated.

But the council, in its defence, has alleged a “female tourist observed them to be submerged”.

The grieving wife and mother of a father and son who drowned at Airlie Beach Lagoon has filed a $4.5m claim against Whitsunday Regional Council and the company that provided lifeguard services Ellmill Enterprises.

The council also alleged Mr Zhang swam from the edge in a decisive manner towards the middle of the lagoon where the bottom “gradually increased to two metres”.

In a claim against the council Ellmill Enterprises stated it initially provided pool maintenance for the council but in September 2017 entered into an agreement to also provide lifeguard services.

The claim states it indicated to the council it had “no relevant experience in the provision of lifeguard services”.

Ellmill Enterprises claimed the council failed to carry out any recommendations from an earlier safety audit including implementing depth signs, a floating barrier or ensuring depth changes were highlighted.

The council, in its response to Ellmill Enterprises’s counterclaim, admitted it did not implement any of the recommendations because in “its belief … it was not required to implement any such recommendations to discharge any duty of care”.

It also denied it was responsible for swimmers’ safety because “it had contracted with and delegated to” Ellmill Enterprise.

The council has alleged the deaths “did not occur in a blind spot to either lifeguards lookout tower or the bridge upon which the two lifeguards … were standing”.

“The sole cause of the deaths of Yuan Zhang and Chenxi was the negligence of (Ellmill Enterprises’s) employed lifeguards in failing to keep a proper lookout … when (the pair) was swimming at the lagoon,” the council’s defence documents state.

Court documents have stated the lagoon can at have up to 300 people in the water at a time. Photo: Rae Wilson

The council, in its own counterclaim against Ellmill Enterprises, has argued if allegations are established then it seeks Ellmill Enterprises to pay 100 per cent of any damages awarded.

Ellmill Enterprises also claimed if Ms Tan was successful in her lawsuit then any amount awarded in her favour should be reduced alleging “Mr Zhang failed to take proper care for his own safety by swimming in deep water whilst supporting a child when he was not a strong swimmer”.

In a response Ms Tan denied this claim stating there was no evidence her husband’s swimming ability was linked to his and their son’s deaths “as Mr Zhang may have suffered a medical episode which caused him to be no longer able to remain above water”.

Ellmill Enterprises claimed its lifeguards saw Mr Zhang “smiling, laughing and swimming competently and in the circumstances reasonably believed that neither Mr Zhang nor Chenxi were at risk” and that neither father nor son “made any call for assistance or otherwise exhibited signs of distress”.

It also denied the lifeguards “failed to keep a proper lookout”.

Ellmill Enterprises’s claim also stated the lagoon was an irregular shape with certain blind spots and without fencing was open to swimmers of all abilities.

The claim also stated at times there were more than 300 people at the lagoon at the same time.

The matter is expected to go to trial in early 2023.