Comcare v Commonwealth

Case [2009] FCA 700

FEDERAL COURT OF AUSTRALIA

Comcare v Commonwealth of Australia [2009] FCA 700

INDUSTRIAL LAW – occupational health and safety – breach of duty of employer to take all reasonably practicable steps to protect the health and safety of employees – camp for cadets organised by Scotch College Cadet Unit – death of cadet with peanut allergy due to consumption of food with peanuts – systemic failure to ensure appropriate use of medical information collated for purpose of camp when distributing food – pecuniary penalty sought – factors to take into account

PRACTICE AND PROCEDURE – civil proceedings – use of victim impact statements

INDUSTRIAL LAW – occupational health and safety – breach of duty of employer to take all reasonably practicable steps to protect the health and safety of employees – group of cadets lost overnight without proper communication equipment – request for adjournment based on the applicant considering that an appropriate undertaking is in force – whether Court must be satisfied undertaking is reasonable

Crimes Act 1914 (Cth) s 4AA
Occupational Health and Safety Act 1991 (Cth) ss 5, 9(5), 10, 16(1), 40(2), 41(1)(b), 53(1), Sch 2 cl 2, cl 14, cl 16
Sentencing Act 1991 (Vic) Pt 6 Div 1A

Comcare v Commonwealth (2007) 163 FCR 207; [2007] FCA 662 (Trooper Lawrence) applied
Comcare v Post Logistics Australasia Pty Ltd (2008) 178 IR 200; [2008] FCA 1987 cited
Director of Public Prosecutions v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557; [2005] VSCA 219 discussed
Director of Public Prosecutions v DJK [2003] VSCA 109 approved
Director of Public Prosecutions v Yarra Valley Water Limited (2006) 159 IR 395; [2006] VSCA 279 discussed
Lawrenson Diecasting Pty Ltd v Workcover Authority of New South Wales (Inspector Ch’ng) (1999) 90 IR 464 applied
R v Dowlan [1998] 1 VR 123 discussed
R v Medini [2002] VSC 12 cited
R v Propsting [2009] VSCA 45 applied
Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 applied
Workcover Authority of New South Wales v Profab Industries Pty Ltd (2000) 49 NSWLR 700 applied

COMCARE v COMMONWEALTH OF AUSTRALIA

VID 409 of 2008

NORTH J
30 JUNE 2009
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 409 of 2008
BETWEEN:

COMCARE
Applicant
AND:

COMMONWEALTH OF AUSTRALIA
Respondent

JUDGE:

NORTH J

DATE OF ORDER:

30 JUNE 2009

WHERE MADE:

MELBOURNE

THE COURT DECLARES BY CONSENT THAT:

1.On 29 March 2007 at the Wombat State Forest near Gisborne in Central Victoria, the respondent, acting through the Chief of Army as the employing authority of members of the Australian Army Cadets (‘AAC’), contravened cl 2(1) of Sch 2 of the Occupational Health and Safety Act1991 (Cth) by reason of having breached s 16(1) of the said Act in the course of conducting a three day training course known as Bivouac 2007 in that it:

(a)     supplied Cadet Nathan Fazal Francis, Cadet Nivae Anandaganeshan and Cadet Gene van den Broek with one-man combat ration packs…

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AGLC
Comcare v Commonwealth [2009] FCA 700
Case
[2009] FCA 700
Decision Date

CaseChat Overview and Summary

In the case of Comcare v Commonwealth, the Federal Circuit Court addressed a dispute regarding the health and safety obligations of the Commonwealth in relation to cadets participating in a camp. The central issue revolved around whether the Commonwealth had adequately fulfilled its duty under the Safety, Rehabilitation and Compensation Act 1988 (Cth) to ensure the safety of cadets during the camp, specifically in the context of managing known peanut allergies. The court examined the adequacy of the Commonwealth's measures to address the risk posed by peanut allergies and whether the death of a cadet, Nathan Francis, from an anaphylactic reaction could have been prevented with more stringent safety protocols.

The legal issues before the court included the interpretation of the Commonwealth's duty under the Act, the adequacy of the measures taken to prevent the occurrence, and the appropriate level of the pecuniary penalty to be imposed for the breach. The court had to balance the Commonwealth's obligations with the practicalities of running a cadet camp and the existing state of knowledge regarding peanut allergies at the time.

The court found that the Commonwealth had failed to meet its duty of care by not implementing sufficient measures to protect cadets with known peanut allergies. The evidence from Nathan's parents, as well as the state of knowledge within the school community and the school itself, provided crucial insights into the context and circumstances of the tragic event. The court acknowledged the human impact of the failure and emphasized the importance of recognizing the significance of the breach in its penalty assessment. Ultimately, the court determined that the appropriate pecuniary penalty was $210,100, reflecting the gravity of the breach and the need for deterrence and rehabilitation.

The court also noted the necessity for a broader inquiry into the joint responsibilities of the school and the Army in running the cadet unit, suggesting that there were systemic issues that needed addressing beyond the immediate case. The final orders included a declaration that the Commonwealth had breached its duty, the imposition of the pecuniary penalty, and the adjournment of further proceedings to allow for additional evidence and consideration of systemic issues.

Orders

Orders of the court

1. Pursuant to cl 4 of Sch 2 of the said Act, the respondent pay to the Commonwealth of Australia a penalty of 1910 penalty units equating to $210,100.

AND BY CONSENT ORDERS THAT:

2. The respondent is to pay the applicant’s costs.

3. The Amended Application dated 16 September 2008 insofar as it relates to paragraphs 20 – 33 of the Statement of Claim dated 6 June 2008 stands adjourned until 10.15 am on 1 April 2010.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In the course of submissions by counsel for Comcare it appeared that there might be some further evidence which could assist the Court in determining the appropriate level of the pecuniary penalty including evidence from Nathan’s parents, Mr and Mrs Francis, evidence concerning the state of knowledge at the time in the school community about peanut allergy, and evidence as to the knowledge of Scotch College about peanut allergy and any steps taken by the school to address the issue. The parties assisted the Court by supplementing the evidence in these areas. The evidence of Mr and Mrs Francis Initially the Court had not heard the voices of Nathan’s parents, Brian and Jessica Francis. Whilst the pain of the loss of a 13 year old son is, on the one hand, obvious, and, on the other hand, indescribable, it seemed wrong for the Court not to hear from those most closely affected. There was a danger that the result of the proceedings being based on a largely agreed outcome could be seen as bypassing those left who are most closely affected by the events. It was likely that Mr and Mrs Francis could give the Court a deeper understanding of the context of the events and the events themselves, as well as some evidence of any steps taken by the Commonwealth to ease their pain and demonstrate acceptance of responsibility for Nathan’s death. In the case of victims of criminal acts, legislation now provides for courts to hear their voices through victim impact statements: for example see Div 1A of Pt 6 of the Sentencing Act 1991 (Vic). That legislation broadened the type of evidence which a court could consider in the course of sentencing in criminal cases: R v Dowlan [1998] 1 VR 123 at 138-9 per Charles JA. But even at common law a criminal court was entitled to take into account the impact on a victim in order to assess the severity of criminal conduct: R v Medini [2002] VSC 12 at [45]. In Director of Public Prosecutions v DJK [2003] VSCA 109 (DJK) Vincent JA explained the value of victim impact statements in a way which is equally applicable to evidence given by those affected by the failure of employers to comply with their occupational health and safety obligations. He said at [17] - [18] that such statements:17… constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court’s attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statement must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.18… It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for the wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim’s perspective, an apparent failure of the system to recognize the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.

Decision

Reasons for decision

NORTH J
The evidence of Mr Dolan and Brigadier Mulhall satisfies me, if such satisfaction be necessary, that Comcare’s view that the undertaking is appropriate was made on reasonable grounds. conclusion It follows from these reasons that the Court will make a declaration sought by the parties by agreement, will fix the pecuniary penalty at $210,100 and will adjourn the hearing of the Lost Section part of the proceeding to 1 April 2010. There is a final matter to be addressed.a closing recommendation During the day on 30 March 2007 before the Scotch College cadets boarded the buses for the camp in Wombat State Forest they were at school under the care of their teachers and other staff of Scotch College. When the camp began those same teachers and staff assumed Army ranks and uniforms. There were no Army personnel at the camp other than the teachers and staff of the school. The teachers and staff ran the camp. But they did not do so as teachers and staff of Scotch College. For the purposes of the Act the health and safety of the boys became the responsibility at law of the Commonwealth. That legal transformation explains why this proceeding has been brought against the Commonwealth and not against Scotch College. Comcare has a statutory function in relation to the Commonwealth. Thus, Comcare conducted its investigation focused on the responsibilities of the Commonwealth. Counsel for Comcare contended that any investigation of the training or knowledge of the teachers and staff at Scotch College would have been beyond the statutory power to investigate. This contention is open to argument. Section 41(1) of the Act provides:(1) An investigator who is a member of the staff of Comcare may, at any time, conduct an investigation: (a) to ascertain whether the requirements of, or any requirements properly made under, the Act or the regulations are being complied with; or (b) concerning a breach or possible breach of this Act or the regulations; or (c) concerning an accident or dangerous occurrence that has happened in the performing of work for an employer. There is a good argument that the power in s 41(1)(c) is wide enough to have permitted a greater emphasis on the role, knowledge and training of the teachers and staff. The concern of the Court is limited to a determination of the proceeding brought under the Act. However, in the course of that task it has become clear that there is need for a wider enquiry into the deficiencies which led to Nathan’s death. The operation of the cadet unit is a joint responsibility of the school and the Army. Schedule 2 of the undertaking contains some background material which explains the relationship between the school and the Army at [9] thus:School Based Units. SBU are restricted to drawing their cadet membership from the students of the parent school or affiliated schools (as approved by the School Heads and Commander AAC). There are 42 SBU of which the majority are in NSW and VIC. In the majority of SBU the cadet program is conducted as an integral component of the school’s co-curricular activities. SBU draw most of their adult staff from the school staff and old-boys of the School. The School Head makes most of the decisions in relation to the operation and activities of the SBU, generally with minimal involvement by Army. This situation reflects the historical ownership of such units by their parent School, in come cases for over 140 years.

Ratio Decidendi

Legal Principle Established

Established by: NORTH J

Clause 4(2) relevantly provides that the maximum penalty for breach of s 16(1) is 2,200 penalty points (cl 4(2) item 1) which equates to $242,000 (s 4AA of the Crimes Act 1914 (Cth)). Schedule 2 continues:5 Who may apply for declaration or order?Application by Comcare or investigator(1) Comcare or an investigator may apply for a declaration of contravention or a pecuniary penalty order.…16 Undertakings(1)Comcare may accept a written undertaking relating to the fulfilment of an obligation under this Act, if the undertaking is given in writing to Comcare by a person who is required to fulfil the obligation.(2)The person must not withdraw or vary the undertaking without the written consent of Comcare. (3)If proceedings relating to whether a declaration should be made against a person under clause 2 have commenced, the court may adjourn the proceedings if Comcare requests the court to do so on the grounds that Comcare considers that an appropriate written undertaking by the person under subclause (1) is in force.(4)If the court considers that a person has breached a term of an undertaking, or that the person has withdrawn or varied the undertaking without the written consent of Comcare, the court may, if it thinks fit:(a)revive any proceedings adjourned under subclause (3); or (b)make an order directing the person to comply with the term (regardless of whether the person has withdrawn or varied the undertaking) and any consequential orders it considers appropriate.(5)Comcare or an investigator may apply to a court for an order under paragraph (4)(b) if the person has breached, is breaching, or proposes to breach the undertaking. Criminal proceedings may also be brought for a contravention of the Act, including for breach of the duty established by s 16(1). However, in order to prove criminal liability it must be established that the breach caused death or serious bodily harm, and that the perpetrator was negligent or reckless. The maximum penalty which may be imposed for a criminal contravention is significantly higher than the penalty which may be imposed for a civil contravention. For instance, the maximum penalty for criminal liability for breach of s 16(1) is 4,500 penalty units equating to $495,000, rather than the maximum civil penalty available which is $242,000. The parties to the proceeding Comcare is a body established under s 68 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), and is entitled to institute proceedings for a breach of the Act (s 77(1) of the Act). The duty under s 16(1) is stated to be imposed on an employer. Section 5 defines employer relevantly to mean the Commonwealth. The duty is imposed in favour of employees. The Act deems cadets undertaking cadet activities to be employees so that the Commonwealth is made liable for any failure to comply with s 16(1) in respect of the cadets. This result flows from s 9(5) of the Act which provides:(5)The Minister may, by notice in writing, declare:(a)that a person who is included in a class of persons specified in the notice, being a class of persons who engage in activities or perform acts:(i)at the request or direction, for the benefit, or under a requirement made by or under a law, of the Commonwealth; or(ii)at the request or direction, or for the benefit, of a Commonwealth authority;is, for the purposes of this Act, to be taken to be employed by the Commonwealth, or by that authority, as the case may be;and(b)that the employment of the person is, for those purposes, to be taken to be constituted by the performance by the person of such acts as are specified in the notice;and such a declaration has effect accordingly.