New pool safety laws aimed at preventing any other family from going through this

Everything seemed perfect for Mark and Jesse Bates on 28 February 2012. The Victorian couple had literally just welcomed the arrival of their second son – another healthy baby boy – to their 22-month-old, Marcus.

Having just given birth, Jesse was in recovery at the Epworth Hospital’s Maternity Ward and Mark was sitting reading a newspaper when a phone call from his brother-in-law instantly shattered their world. He stood up to take the call until his legs collapsed under him and Jesse knew straight away that something serious had happened to Marcus.

The previous night, Mark’s sister had taken their little boy home to look after him while his new brother Brandon was being born. Marcus fell asleep in the car on the way home from hospital so his aunty transferred him to her bed from his car seat so he could continue sleeping.

Exactly what happened next is still unclear because many of their questions remain unanswered. But what is known is that Marcus’s aunty fell asleep watching television next to him and when she woke up he was no longer on the bed beside her.

Mark’s sister and her husband often left their rear sliding door open so their pet dogs could come in and out when they wanted. But they also had an unfenced swimming pool in their backyard where she soon found Marcus lying face-down in the water. 

“He had drowned,” Mark recalls. “His heart had stopped and he was dead, so I’m grateful that my sister gave him CPR until the ambulance arrived and restarted his heart, which brought him back to life.”

After that fateful phone call, Mark and Jesse raced from the Epworth to the Monash Medical Centre to be by Marcus’s side. And that was where he remained for the next three months.

Doctors placed Marcus in an induced coma so the brain swelling could settle but there was a moment a few days later that he was awoken that he seemed to be his usual self. Mark remembers him being lucid for about an hour, when he played with an iPad and was laughing. But it was short-lived and his condition rapidly deteriorated.

Marcus suffered catastrophic hypoxic brain injuries and soon after was in a semi-comatose state.

“He spent six weeks as an unconscious entity on a bed and at no point did we know what was going to happen to our little boy,” Mark says. “It was excruciating watching him suffer – he was moaning over, and over again, which was one of the hardest things you can go through as a parent, especially when you can’t do anything to relieve their pain.

“His muscles would spasm and Marcus had no control over anything. And he’s never returned to normal since.”

The daily impact of that tragic accident

As a result of his injuries, Marcus requires 24-hour care. His days are spent surrounded by carers undergoing all sorts of different therapy to help with his ongoing recovery.

“It’s been incredibly hard on all of us,” Mark says. “Jesse and I both have our moments when it all becomes too much and the frustration of it all is made worse by the fact that this could have been avoided had they have just secured the house properly.

“Marcus was such a confident, beautiful and inquisitive little boy who was developmentally ahead of his age group and he was always happy and smiling. He was walking and running at nine months and would point at things and tell you what they were… We expected a big and bright future for him. But now so much of that has been taken away.”

Marcus requires assistance to do most things like getting dressed and brushing his teeth and his vocabulary only consists of between five to 10 words. He has learnt to walk again, but is still prone to falls, and he uses an electric wheelchair for longer distances. He still faces a long recovery ahead and, seven years on, he still can’t go to the bathroom on his own.

“He understands so much. He’s very engaging and still loves people but he just can’t get the words out and we don’t know if he will ever be able to.”

Growing up in the shadow of an older brother with special needs has also been tough on Brandon, Mark acknowledges.

“His brother has always got more attention than he has and he’s got carers around every day and Marcus gets all sorts of therapy that Brandon doesn’t because he doesn’t need it. I love videoing things and we often make a big deal when Marcus achieves something like taking a few steps on his own, only to realise that Brandon feels left out because he’s taking more than three steps all the time so he’s constantly trying to get people’s attention.”

What the future holds for Marcus remains unknown, but meeting all of his needs has been made easier thanks to Public Liability compensation he was awarded after a claim lodged against Mark’s sister and her husband’s house and contents insurer was accepted.

“This pays for his carers and therapy and anything else he needs, but we would give every cent of it back if we could just have our little boy back the way he was before this happened.

“We don’t know if he’ll ever be able to talk or have friends who he can play with like normal kids do, or have a girlfriend, or whether he will ever be able to live by himself and have a job, for instance. No one knows, so we just have to take each day as it comes and hope for progress.”

New regulations for pool and spa owners

Regardless of whether or not the door had been left open that day, had there have been a fence between the house and the pool, Marcus would not have fallen into the water. But because the pool was built in the backyard of the property in the 1990s, the house is considered compliant with the safety standards of the time.

Reforms that came into effect in Victoria on December 1, 2019, require home owners with pools and spas to now register them with their local council so regular compliance audits can be done to make sure the barriers are in place and remain safe.

Mark said anything that prevented any other children from going through what Marcus and their family have gone through and continue to experience was worth implementing.

“This was so preventable. What happened to Marcus never should have happened and in the instant it did it changed all of our lives forever. Hopefully these measures will stop this from happening in the future.”

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Dimi Ioannou

Maurice Blackburn Melbourne

Dimi Ioannou is a Principal Lawyer and Practice Group Leader at Maurice Blackburn Lawyers in charge of the firm’s Public and Product Liability team in Melbourne. Dimi is an accredited specialist in personal injury law.

Dimi works in the area of public liability and represents clients in a wide range of consumer law litigation involving different product liability claims.

Dimi also represents families at coronial inquests, acti…

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