Record of Investigation Into Death (Without Inquest)

Corners Act 1995
Coroners Rules 2006
Rule 11

I, Stephen Raymond Carey, having investigated the death of

Benjamin David Clarke

have decided not to hold a public inquest hearing into his death because my investigations have sufficiently disclosed the identity of the deceased person, the time, place, cause of death, relevant circumstances concerning how the death occurred and the particulars needed to register the death under the Births, Deaths and Marriages Registration Act 1999.  I do not consider that the holding of a public inquest hearing would elicit any information further to that disclosed by the investigations conducted by me.

Find That:

(a) The identity of the deceased is Benjamin David Clarke (“Mr Clarke”) who died in the sea at Port Davey, Tasmania on 17 June 2012.

(b) Mr Clarke was born at Devonport on 23 December 1983 and was aged 28 years at the time of his death.

(c) Mr Clarke was a single man and was employed as a professional fisherman.

(d) The precise cause of death of Mr Clarke is unable to be determined due to his body not as yet being able to be located.  Given the overall circumstances of this matter, it is probable that he died as a result of drowning or some other mishap when he was thrown into the sea upon the capsizing of a dinghy he was in at the time.

Circumstances Surrounding the Death:

Mr Clarke had worked in various employment but the majority of time he had worked in the fishing industry, in particular, crayfish fishing.  Those who had worked with him in the last 10 years describe him as a competent and conscientious deckhand.  In January 2012 Mr Timothy Whayman was engaged as the skipper of the FV Kristie Lee owned by Mr Jeffrey White.  Mr Whayman chose Mr Clarke to be his deckhand and the two commenced crayfishing around the coastal area of Tasmania.  Comments by other fishermen who knew them described them as “a good team”.  Mr Clarke’s partner describes the working relationship as follows:

“Ben loved working at sea.  He wouldn’t want to be on the water with anyone else but Tim.  Ben had said that Tim is the only other person he would trust in a dinghy.  They would use the dinghy to set pots fairly often, more so than other fishing vessels would.”

Mr Whayman made the decision in June 2012 to make a fishing trip to the South West coast of Tasmania, it is understood that Mr Whayman chose to go to that area because he knew the area well and also that James Mason, on FV Truganini and Peter McKenzie on FV Triton were both going to that area.  They arrived in the area in and around 10 June 2012.  On 15 June 2012, both Mr McKenzie and Mr Mason were required to leave the area, as FV Truganini suffered a mechanical fault and was towed back to Kettering by FV Triton.  Mr McKenzie returned to the South West coast area on 17 June 2012.

Apparently Mr Whayman and Mr Clarke had been carrying out night sets whilst in the Port Davey area using his dinghy and also setting in shallow water close to the shore.  Also working in the area of Port Davey at this time was Mr Michael Ford aboard FV Kathryn and Mr Jake Murphy on FV Aladdin.

On the evening of 16 June Mr Murphy anchored his vessel near Kristie Lee and came aboard the Kristie Lee for an evening meal during which time and for a period afterwards alcohol was consumed.  Mr Murphy however describes that there was no excessive drinking but both Mr Whayman and Mr Clarke were affected to some extent by the alcohol they consumed.  This finished up close to midnight when Mr Murphy was taken back to his vessel.  During the night they had talked about the fishing and also had noted the weather forecast which indicated there would not be a change until later the next day.  Mr Whayman was happy because this meant he could leave their night set in overnight. 

At about 5.00 am on 17 June Mr Murphy commenced pulling his craypots from further inside Port Davey, his area of operation was about 1 hour’s travel inside Port Davey.  He returned to the area near the Kristie Lee at some time after 9.00 am and noticed that the dinghy was not alongside the vessel.  He continued on towards the entrance of Port Davey and pulled alongside the FV Kathryn and spoke with Mr Ford.  Mr Ford described that he commenced pulling his pots at about 5.00 am and he contacted Mr Whayman on the radio at about 7.00 am telling him that the weather was starting to deteriorate and suggested that he pull his pots given that he was using a dinghy.  He notes that it was not unusual to wait until daylight when using a dinghy before pulling craypots.  Mr Ford describes that it was at about 9.00 am and he was still pulling his pots when he saw Mr Whayman and Mr Clarke in Kristie Lee’s dinghy heading back towards the vessel.  They pulled alongside his vessel and there was a discussion between them.  Mr Ford says that during this conversation Mr Whayman mentioned that the outboard of the dinghy was “playing up a bit”.  However Mr Whayman did not go into any details.  They planned to meet for a coffee after they had finished their work.  Mr Ford describes the weather at that stage as being a 35 – 40 knot wind blowing west southwest and that there being a southerly swell of approximately 1 metre.  Mr Murphy recalls that in his conversation with Mr Ford, Mr Ford said that Mr Whayman had told him they had pulled their gear and had reset as a day set but they had a couple of “stuck” pots.  I am aware that at times crayfish pots can become jammed in the rocks in which they are set or that the cray lines may become snagged in those rocks or other structures under the water.  At the conclusion of his discussion with Mr Whayman and Mr Clarke, Mr Ford understood that they intended to return to the Kristie Lee, unload the craypots they had in the dinghy and then try again to retrieve the “stuck pots”.  He observed that Mr Whayman had on a dark blue thermo-float jacket that he always wore when fishing whilst Mr Clarke was wearing a yellow PFD life jacket.  Mr Murphy also states that he was told by Mr Ford that when he saw Mr Whayman and Mr Clarke in the dinghy they had “about 10 pots on board and about 6 inches of water in the dinghy”.

When Mr Murphy steamed back towards the Kristie Lee he kept an eye out for the dinghy and thought that they would be working from the dinghy somewhere near the shoreline along the coast towards where the FV Kristie Lee was anchored.

He could not see any sight of them and they were not back at the FV Kristie Lee so he then scanned back along the coast using his binoculars trying to find the dinghy.  At this stage he held no concern as there was no indication of any mishap such as wreckage, life jackets or Mr Whayman and Mr Clarke in the water or on the rocky shoreline.

Mr Murphy describes that in his discussions with Mr Whayman and Mr Clarke the night before that Mr Whayman had mentioned that he knew a couple who had brought a large recreational vessel into the area and that he had promised to take them further up river in his dinghy.  Mr Whayman had also mentioned that he might go up the river to see if he could find some “pine”.  At that stage he believed that this was where Mr Whayman and Mr Clarke had gone.

At about 2.00 pm Mr Ford and Mr Murphy pulled alongside and had lunch and discussed that they would wait until after they had pulled their day set before checking whether Mr Whayman and Mr Clarke had returned to the FV Kristie Lee.  They continued to look for the dinghy but did not notice anything by dark.  After dark Mr Ford travelled along the coast shining his light up into gulches in the shoreline where he knew that Mr Whayman had set pots.  There was still no sign of the pair nor their dinghy and they decided that it was a possibility that Mr Whayman and Mr Clarke had spent the afternoon drinking on board the recreational vessel and that they had decided to stay the night.  They determined that if Mr Whayman didn’t pull his crayfish pots the next morning then this would indicate that something was definitely wrong.

At 7.00 am on 18 June Mr Ford and Mr Murphy realised that something was wrong as there was still no sign of Mr Whayman and Mr Clarke.  They searched around the area in more detail without success.  Eventually Mr Murphy raised Mr McKenzie on FV Triton who had returned to the area and requested that he use his satellite phone to call Emergency Services.  The three vessels then continued to search the area.  At approximately 1.00 pm Mr Michael Ford located an upturned dinghy inside a gulch that was just inside Point Lucy.  The other two vessels then moved to the area and continued searching for debris or any sign of Mr Whayman and Mr Clarke.  Approximately an hour after this discovery the Tasmania Police rescue helicopter arrived.

Upon arrival the rescue crewman, Sergeant Stacey, was winched down from the helicopter to a rock ledge near where the dinghy had been found.  He then swam in to the gulch and inspected the upturned dinghy, noting that it was firmly wedged in an upside-down position in shallow water, and that the outboard motor was intact and attached to the vessel.  He then inspected the dinghy and the area around it and no persons were found.  The Tasmania Police rescue helicopter then conducted a systematic aerial search of the Port Davey area which concluded at 4.00pm.  At the same time, FV Kathryn (Michael Ford), FV Aladdin (Jacob Murphy) and FV Triton (Peter McKenzie) were directed to complete a systematic grid search of the water off Saddle Blight.  No sign was found of Mr Whayman or Mr Clarke and the FV Kathryn then left the area with FV Aladdin leaving the next morning.

The next morning, Tuesday 19 June 2012, revised net water movement data for the search area was obtained from Aussar in Canberra and combined with the weather forecast for the area, a revised targeted search strategy was implemented.  At 10.30am that day, PV Vigilant, which had been deployed from the Huon River at 12:00pm the previous day, arrived in the Port Davey area and crew were deployed in the Tasmania Police tender “Swift” to conduct a shoreline search of Saddle Blight, Point Lucy and Point St Vincent.  Tasmania Police also boarded the KV Kristie Lee and noted that the bilge alarm was sounding which indicated an excessive amount of water in the bilge area of the vessel, but it also indicated that the vessel had not been occupied for some time.  The FV Kristie Lee was handed over to Mr Mark Cornelius at approximately 1.00pm on 19 June 2012 and he sailed the vessel back to Kettering arriving on Wednesday 20 June 2012.  Throughout 19 June 2012 the PV Vigilant, assisted by FV Triton and FV Climax conducted a systematic search throughout the area.  Also on that day, the Tasmania Police rescue helicopter continued an aerial search.

On Wednesday 20 June 2013 at approximately 6.00am, the Tasmania Police rescue helicopter transported land based search teams into the area co-ordinated by Sergeant Steane.  The area of coastline around the dinghy was searched on foot with the search continuing inland and to the north.  A deep gulch to the south prevented land searches in that direction.  The land search teams found the terrain extremely difficult to traverse, travelling approximately 500m north of the dinghy in a 5 hour period.  Sergeant Steane concluded that a person on shore was unlikely to attempt to walk to help, but would be more likely to remain on the shore and attempt to attract attention from vessels.  Throughout 20 June 2012, the PV Vigilant and its tender, “Swift” continued searching the shoreline and the sea areas of Port Davey.  At approximately 1.00pm on Wednesday 20 June 2012, Sergeant Pratt conducted a snorkel search of the gulch over a 30 minute period in the vicinity of the upturned dinghy.

On Thursday 21 June 2012, PV Vigilant rendezvoused with PV Van Diemen which was carrying a Tasmania Police dive team.  Weather conditions were too perilous for an underwater search, however the team were able to conduct a partial search of the gulch area at Point Lucy from the surface by snorkel and also on land by foot.

On Friday 22 June 2012, the dive team conducted an underwater search of the gulch at Point Lucy.  The diving conditions were difficult with the swell moving the divers underwater forward and backwards approximately 3m to 4m with each surge.  The dive team reports were unable to locate any debris or items of interest during this search.  Search efforts concluded at approximately 12.00pm on Friday 22 June 2012 due to increasing adverse weather.

After the conclusion of the Tasmania Police search, a private search party comprising Terry Jones, Chris Ross, Duncan Mennitz and Justin Gimblett searched the shoreline of the inner Saddle Blight for over a 4 day period sometime between 23 June 2012 and 1 July 2012.  This team did locate a red plastic safety drum which contained flares and was from the FV Kristie Lee.  It has been determined that Mr Whayman and Mr Clarke were known to carry that red plastic drum in their dinghy when they were working from it.

At approximately 9.30am on Wednesday 11 July 2012, Reginald Atkins, aboard FV May Anne reported to Tasmania Police that he had found human remains floating approximately 2 nautical miles north-west of South West Cape.  These remains were secured and recovered by Tasmania Police aboard PV Van Diemen at approximately 3.15pm that day and transported to Hobart.  The remains then underwent DNA and odontological identification procedures which I am satisfied confirmed those remains to be of Timothy Whayman.

To date the body of Mr Clarke has not been located.  However, the investigation has determined that no friend or family of Mr Clarke has had any contact with him since 17 June 2012.  In March 2013 a Senior Constable Natalie McIntee with Tasmania Police who is the co-ordinator of the missing persons unit conducted a series of checks in relation to Mr Clarke.  Those checks involved contact with all Australia police jurisdictions, ten of the most commonly used financial institutions, Medicare, Centrelink, Australia Electoral Commission, Births, Deaths & Marriages, Corrective Services, Department of Housing, Aurora, Mental Health Services, Lands & Titles, and the Commonwealth Department of Immigration and Citizenship.  Those checks determined that there had been no contact by Mr Clarke with any of those agencies since his disappearances.  On that basis I conclude that he died in the same incident as Mr Whayman.

Comments and Recommendations:

Mr Whayman and Mr Clarke were obviously engaged in fishing activity that could be described as pushing the limit.  They were operating out of small dinghy, setting craypots close inshore near, or in, the wave break and in gulches where the sea state was magnified.  There is clearly a debate amongst experienced fishermen about whether or not what they were doing at that time of the year, when the weather creates greater risk, was an unsafe practice.  Professional fishermen are remunerated based on their catch.  Mr Whayman was acknowledged as achieving better than average catches and this may have been due to his preparedness to take a greater risk at times than others.  Setting the craypots close inshore at a time of the year when weather conditions were likely to be less than ideal for operating a dinghy close to shore most likely created the circumstances that eventually lead to the incident that cause their death.

The evidence suggests however that the dinghy overturn incident occurred not whilst they were in the normal course of setting and retrieving pots but rather whilst they were attempting to retrieve a pot that had become stuck.  Given where the dinghy was retrieved this apparently was in or near the gulch at Point Lucy where the dinghy was located.  Operating a dinghy in or near the gulch would have exposed it to significant wave surges, and possibly breaking waves and turbulent water.  The turbulent water (white water) would have significantly decreased the efficiency of the outboard motor.  Added to this, if one of them had taken hold of, or the pot line had been secured to the dinghy in an attempt to drag it from its snagged position, this would have increased the risk of capsize if the dinghy was caught in a wave surge or breaking wave.  Although the outboard motor on the dinghy was relatively new and had been fully serviced within the 6 months prior to the incident, Mr Whayman apparently was having some difficulty with it on the day.  If it had failed at a crucial time, this would have added to the risk of capsize.

I suspect that Mr Whayman and Mr Clarke were attempting something that involved more risk than normal fishing activities.  However, they were both experienced, competent and by inference confident in what they were doing.  Not knowing precisely what happened, it is difficult to form any specific recommendations or comments.  The one matter that ought to be mentioned is whether or not the personal flotation devices being worn by these men were adequate for the circumstances, that is were capable upon them being immersed in the water, of holding their body weight so that they remained above the waterline. Any person wearing a personal flotation device must ensure from the manufacturers data and the current condition of the device that it is capable of fully supporting their body in the water and keeping their head out of the water before relying upon it. In the sea conditions at the time, it is likely that they could well have suffered injury so as to render them unconscious or incapable of protecting themselves very shortly after they were tipped from the dinghy. A personal flotation device that required manual activation would have provided no assistance in those circumstances.

I have given some consideration to whether or not the carrying by either or both of these men of a personal location device may have materially improved their chances of survival. However the majority of these devices require manual activation and their effectiveness would be significantly impaired if under any depth of water. In the circumstances that I presume these men found themselves in there may have been no opportunity to activate such a device whilst they were on the surface. However I recommend that the industry consider the safety benefits of utilising such devices especially when someone is working away from the main vessel. Although once again it may not have altered the final outcome of this matter I do recommend that when professional fishermen are working in a dinghy away from the main vessel they carry the vessel’s EPIRB. Mr Whayman was in the habit of carrying safety flares in the dinghy had he carried the EPIRB and it had been able to be deployed then at the very least a timely distress signal would have generated.

This tragedy highlights that no matter how experienced or competent a person is, nature in the form of the sea will, on occasions, prevail.  Professional fishing along the exposed coastline of Tasmania is a dangerous activity and this incident highlights the need to fully and rationally consider the risks of any action before embarking upon it.  I recommend that professional fishermen take the time to identify the risks associated with any of their activities, assess those risks and consider ways to mitigate those risks before undertaking the activity or, as a result of that consideration, delay or desist taking that activity.  Complacency will always be a risk where persons have been involved in activities over a length of time and continue to perform those activities without considering specific increased risk factors that could be present on any particular occasion.  Taking the time to consider the circumstances in this particular case may have avoided the tragic outcome. 

Before I conclude I wish to convey my sincere condolences to the family of Mr Clarke.

DATED:        20  day of May 2013.


Stephen Raymond Carey