Comcare v Commonwealth of Australia

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FEDERAL COURT OF AUSTRALIA

Comcare v Commonwealth of Australia [2015] FCA 810

Citation: Comcare v Commonwealth of Australia [2015] FCA 810
Parties: COMCARE v COMMONWEALTH OF AUSTRALIA
File number: ACD 88 of 2013
Judge: FOSTER J
Date of judgment: 7 August 2015
Catchwords: DEFENCE AND WAR – determination of the appropriate civil penalty for a contravention of s 16(1) of the Occupational Health and Safety Act 1991 (Cth) resulting in the death of a Special Forces soldier and the wounding of another soldier during a training exercise
Legislation: Occupational Health and Safety Act 1991 (Cth), s 16
Cases cited: Barbaro v The Queen (2014) 305 ALR 323
Comcare v Commonwealth of Australia (2007) 163 FCR 207
Comcare v Post Logistics Australasia Pty Ltd (2012) 207 FCR 178
Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 229 FCR 331
Tax Practitioners Board v HP Kolya Pty Ltd [2015] FCA 472
Date of hearing: 9 December 2014
Place: Sydney (via video link to Canberra) (heard in Canberra)
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 93
Counsel for the Applicant: Mr GH Livermore
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondent: Mr AR Moses SC and Mr J Ensbey
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 88 of 2013
BETWEEN:

COMCARE
Applicant
AND:

COMMONWEALTH OF AUSTRALIA
Respondent

JUDGE:

FOSTER J

DATE OF ORDER:

7 AUGUST 2015

WHERE MADE:

SYDNEY (VIA VIDEO LINK TO CANBERRA)

THE COURT:

1.DECLARES that, on or about 20 October 2009 at the Cultana Training Area in South Australia, the respondent, acting through the Chief of the Defence Force as the employing authority in relation to members of the Australian Defence Force, contravened subclause 2(1) of Sch 2 of the Occupational Health and Safety Act 1991 (Cth) (the OHS Act) by reason of it having breached s 16(1) of the OHS Act in that in the course of conducting a Training Exercise it:

(a)Failed to take all reasonably practicable steps to provide and maintain a working environment (including systems of work) for employees that was safe and without risk to their health (s 16(2)(a)(i)); and

(b)Failed to take all reasonably practicable steps to provide employees with the supervision necessary to enable them to perform their work in a manner that was safe and without risk to their health (s 16(2)(e)).

2.ORDERS that the respondent pay to the Commonwealth of Australia a pecuniary penalty in the sum of $220,000 in respect of the contravention of subcl 2(1) of Sch 2 of the OHS Act described in par 1 above.

3.ORDERS that the respondent pay the applicant’s costs of and incidental to the application. 

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 88 of 2013
BETWEEN:

COMCARE
Applicant
AND:

COMMONWEALTH OF AUSTRALIA
Respondent

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Details
Case
[2015] FCA 810
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Comcare, as the representative of the Commonwealth in occupational health and safety matters, brought proceedings against the Commonwealth for contravention of section 16(1) of the Occupational Health and Safety Act 1991 (Cth) that resulted in the death of a Special Forces soldier and the wounding of another during a training exercise at the Cultana Range Training Area in South Australia on 20 October 2009. The primary legal issue before the Court was to determine the appropriate civil penalty for the Commonwealth's contravention of the Act. The Court was required to consider various factors, including the gravity of the consequences of the incident, the foreseeability of the risk, and the Commonwealth's efforts to mitigate the risk and prevent future occurrences.

The Court examined the evidence presented by both parties and weighed the relevant factors in determining the appropriate penalty. The Court acknowledged the serious consequences of the incident, including the death of Lance Corporal Mason Kerrin Edwards and the wounding of another soldier, as well as the emotional and financial impact on the deceased's family. The Court also considered the Commonwealth's efforts to implement remedial measures and the need for deterrence and encouragement of future diligence in occupational health and safety matters. The Court concluded that a penalty of $220,000 was appropriate, which was slightly over 90% of the upper limit available to the Court.

The Court recognised that the Commonwealth had taken substantial remedial measures to address the deficiencies that led to the tragic incident, and Comcare was satisfied that appropriate measures had been taken to avoid a repeat of the incident. Therefore, Comcare did not seek any order for additional remedial action.

The final orders of the Court were that the Commonwealth pay Comcare a penalty of $220,000 for the contravention of section 16(1) of the Occupational Health and Safety Act 1991 (Cth), and that no further remedial action was required.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

It is not necessary to traverse the contents of Major General Gilmore’s affidavit. That affidavit was read in order to support two broad themes: First, it was read in order to publicly convey to Lance Corporal Edwards’ family the deep regret of the Commonwealth for its failure to protect him during the course of the relevant military exercises. Second, it was designed to some extent to place before the Court the evidence of an appropriately qualified expert as to the need for the type of training which was undertaken in the relevant exercise if the military forces of Australia are to discharge their role competently and safely in the future. THE AGREED FACTS As I have already noted, the parties agreed the relevant facts in the SOAF. Some of the facts set out in that document must remain confidential because of considerations of national security. In this section of these Reasons, I will endeavour to capture the essence of the material events without travelling into facts, matters and circumstances which should be kept confidential. My summary of the relevant facts follows. On the night of 20 October 2009 at the Cultana Range Training Area in South Australia (Cultana) and during the course of an army training exercise, Special Forces soldier Lance Corporal Mason Kerrin Edwards received a single fatal gunshot wound to the head. A second Special Forces soldier was hit by three rounds with two of those rounds striking the front and top of his helmet but causing no physical damage to him. The third round struck his rifle and deflected into his left forearm. The death of Lance Corporal Edwards and the wounding of his comrade occurred while members of the ADF were conducting a training exercise at Cultana in the period from 8 October 2009 to 31 October 2009. The relevant exercise was designed to provide those soldiers involved in it with mission specific training and mission rehearsal exercises as a prerequisite to deployment to Afghanistan in early 2010. It comprised a number of different training exercises conducted both during the day and at night, including some training exercises in which live ammunition was used and fired (live fire serials) and in which explosive charges were used. There is no dispute in this proceeding that the relevant exercise was conducted by the Chief of the Defence Force on behalf of the Commonwealth at Cultana and that Cultana was a workplace under the Commonwealth’s control. In those circumstances, there is no dispute in the proceeding that the Commonwealth owed to the ADF members who participated in the relevant training exercise the duties imposed upon it by the OHS Act, in particular, the duties imposed by s 16 of that Act. In 2009, the ADF conducted training exercises (including range practices using small arms and other weapons) according to a formal manual (the manual). The manual contained detailed specifications as to the way in which such practices were to be conducted. Unsurprisingly, for such exercises, there was a specific chain of command by which the appointing authority for particular roles and positions was designated in each case. According to the relevant manual, each of the persons appointed to the operational roles had particular responsibilities which were set out in the manual in some detail. The manual required firing to cease immediately in the event of any emergency or unsafe practice at Cultana during the relevant exercise.

Evidence

Evidence Before The Court

For present purposes, it is s 16(2) that is of particular relevance.THE EVIDENCE TENDERED AT THE HEARING In support of its case, Comcare relied upon the ASOC, the Confidential Amended Defence filed by the Commonwealth, the SOAF and the affidavit of Peter Harold Hutchinson sworn on 18 September 2014. Attached to Mr Hutchinson’s affidavit were three statements made by Lance Corporal Edwards’ mother. In those statements, Lance Corporal Edwards’ mother told the Court about Lance Corporal Edwards’ life. He was a fine young man who had served his country in several dangerous overseas deployments. She then gave a heart rending account of the emotional, financial and personal impact his death had had upon her and Lance Corporal Edwards’ three siblings. This account was deeply personal in its content and extremely moving. I was touched by the palpable sincerity of the feelings exposed to the Court by Lance Corporal Edwards’ mother. The Commonwealth read a confidential affidavit sworn by Major General Gilmore who was, at the time he swore the affidavit, the Deputy Chief of Army. It is not necessary to traverse the contents of Major General Gilmore’s affidavit. That affidavit was read in order to support two broad themes: First, it was read in order to publicly convey to Lance Corporal Edwards’ family the deep regret of the Commonwealth for its failure to protect him during the course of the relevant military exercises. Second, it was designed to some extent to place before the Court the evidence of an appropriately qualified expert as to the need for the type of training which was undertaken in the relevant exercise if the military forces of Australia are to discharge their role competently and safely in the future. THE AGREED FACTS As I have already noted, the parties agreed the relevant facts in the SOAF. Some of the facts set out in that document must remain confidential because of considerations of national security. In this section of these Reasons, I will endeavour to capture the essence of the material events without travelling into facts, matters and circumstances which should be kept confidential. My summary of the relevant facts follows. On the night of 20 October 2009 at the Cultana Range Training Area in South Australia (Cultana) and during the course of an army training exercise, Special Forces soldier Lance Corporal Mason Kerrin Edwards received a single fatal gunshot wound to the head. A second Special Forces soldier was hit by three rounds with two of those rounds striking the front and top of his helmet but causing no physical damage to him. The third round struck his rifle and deflected into his left forearm. The death of Lance Corporal Edwards and the wounding of his comrade occurred while members of the ADF were conducting a training exercise at Cultana in the period from 8 October 2009 to 31 October 2009. The relevant exercise was designed to provide those soldiers involved in it with mission specific training and mission rehearsal exercises as a prerequisite to deployment to Afghanistan in early 2010. It comprised a number of different training exercises conducted both during the day and at night, including some training exercises in which live ammunition was used and fired (live fire serials) and in which explosive charges were used.

Decision

Reasons for decision

As was the case in Kolya, I wish to record that I have read and considered the Written Submissions made by both parties in respect of the relevant principles to be applied in respect of the imposition of the civil penalty called for in the present case as well as taken into account the material facts proven in evidence and the subject of submissions before me. I have also taken into account and thought carefully about the oral submissions made on behalf of both parties. As was the case in Kolya, I wish to make it very clear that, in relation to all of these matters, I have made up my own mind and come to my own conclusions. In particular, in imposing the penalty which I have decided to impose, I have weighed for myself the various relevant factors which were the subject of submissions from the parties. I have certainly not been constrained in any way by the specific penalties nominated by Comcare or by the Commonwealth. DECISION ON PENALTY I am concerned that the upper limit of the penalty that might be imposed for the admitted contravention in the present case does not give to the Court sufficient scope to impose a penalty at the level which I consider is required. On the one hand, the consequences of the Commonwealth’s contravention have been extremely serious. The contravention led directly to the death of a fine young man who was conducting himself impeccably in the service of his country and who had already gone into harm’s way on more than one occasion in the service of his country. In addition, the death of Lance Corporal Edwards has wreaked havoc amongst his family and friends. The pain and anguish caused by his death will never leave his mother or his siblings—I am sure it would be very difficult for each of them not to turn their mind to their lost loved one every single day of their lives. On the other hand, the Commonwealth has taken serious and considered steps over time to minimise the risk to its ADF soldiers. Although there were difficulties in the effectiveness of the protocols and processes documented in the manual, possibly the most serious shortcoming in the present case occurred in the execution of those protocols and processes. Briefings were not carried out as they should have been. The wrong people were put in charge of the wrong components of the exercise. I have carefully weighed all of the relevant factors. I have come to the view that I must recognise that the present case is not in the very worst category of cases that might come before the Court for consideration. I must also recognise that the Commonwealth has behaved impeccably since the incident. However, I cannot ignore the catastrophic consequences of the Commonwealth’s neglect. Nor can I ignore the fact that the contravention was nonetheless serious. Having thought about the matter deeply for a long time, I have come to the view that I should impose a penalty of $220,000 upon the Commonwealth for the admitted contravention in the present case. This amount is slightly over 90% of the upper limit available to the Court.

Ratio Decidendi

Legal Principle Established

The Commonwealth has implemented substantial remedial measures to remedy the deficiencies which gave rise to this tragic incident. Comcare is satisfied that appropriate measures have now been taken to avoid a repeat of the incident. For this reason, Comcare does not seek any order for additional remedial action. CONSIDERATIONThe Applicable Principles A contravention by an employer of s 16 of the OHS Act attracts a maximum penalty of $242,000. This is a “relatively low limit” (see Comcare v Commonwealth of Australia (2007) 163 FCR 207 (Trooper Lawrence) at 208 [1] per Madgwick J). The OHS Act does not explicitly list factors that the Court should take into account in determining an appropriate pecuniary penalty. Comcare submitted, however, that guidance is provided by a number of cases in this Court. Both parties agreed that the leading authority in respect of the imposition of pecuniary penalties for breaches of the OHS Act is the Full Court’s decision in Comcare v Post Logistics Australasia Pty Ltd (2012) 207 FCR 178 (Post Logistics 2012). In Trooper Lawrence, Madgwick J had listed a number of factors which he regarded as important in assessing penalties under the OHS Act. At 228–229 [119]–[123], his Honour said:119The applicant contends that guidance may be had from decisions relating to penalty under State occupational health and safety laws which import like obligations on employers. 120Decisions under the cognate New South Wales Act refer to the following considerations among others:(i)the penalty must be such as to compel attention to occupational health and safety generally, to ensure that workers whilst at work will not be exposed to risks to their health and safety;(ii)it is a significant aggravating factor that the risk of injury was foreseeable even if the precise cause or circumstances of exposure to the risk were not foreseeable;(iii)the offence may be further aggravated if the risk of injury is not only foreseeable but actually foreseen and an adequate response to that risk is not taken by the employer;(iv)the gravity of the consequences of an accident does not of itself dictate the seriousness of the offence or the amount of penalty. However the occurrence of death or serious injury may manifest the degree of the seriousness of the relevant detriment to safety;(v)a systemic failure by an employer to appropriately address a known or foreseeable risk is likely to be viewed more seriously than a risk to which an employee was exposed because of a combination of inadvertence on the part of an employee and a momentary lapse of supervision;(vi)general deterrence and specific deterrence are particularly relevant factors in light of the objects and terms of the Act;(vii)employers are required to take all practicable precautions to ensure safety in the workplace. This implies constant vigilance. Employers must adopt an approach to safety which is proactive and not merely reactive. In view of the scope of those obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the employer in the future. This is particularly so where the employer conducts a large enterprise which involves inherent risks to safety;(viii)regard should be had to the levels of maximum penalty set by the legislature as indicative of the seriousness of the breach under consideration; (xi)the neglect of simple, well-known precautions to deal with an evident and great risk of injury, take a matter towards the worst case category;(x)the objective seriousness of the offence, without more may call for the imposition of a very substantial penalty to vindicate the social and industrial policies of the legislation and its regime of penalties.121The applicant contends that the above approach is particularly relevant in the context of the subject OHS Act. The evident purpose of making the Commonwealth liable to a penalty for a breach of s 16(1) of the OHS Act is to mark the seriousness of the conduct and act as a deterrent to the Commonwealth, Commonwealth agencies and other persons who may be subject to the OHS Act. 122The respondent submitted:Care must be taken in the use of criminal cases arising under occupational health and safety legislation in the various State jurisdictions. Unlike subsection 16(1) of the OHS Act, the New South Wales equivalent imposes an absolute obligation on an employer to secure the health and safety of its employees, a circumstance that has guided the New South Wales courts in their approach to penalties in criminal proceedings under the NSW legislation. Subsection 11(2) of the OHS Act very deliberately excludes the Commonwealth and Commonwealth authorities (other than Government business enterprises) from liability for prosecution for an offence under the Act. The reasons for this exclusion must go beyond simply easing the procedural and evidentiary burdens faced by Comcare and its investigators in making the Commonwealth accountable for occupational health and safety breaches. As Giles JA observed in Adler v ASIC [2003] NSWCA 131; (2003) 46 ACSR 504, [658]: ‘Civil penalties can be regarded as punitive, with a resemblance to fines imposed on criminal offenders, but the resemblance is not identity’.123I nevertheless consider that, despite the differences between the New South Wales and the Commonwealth legislation, and bearing in mind that these are civil and not criminal proceedings, the considerations enumerated above, mainly enunciated in decisions of the New South Wales Industrial Commission, provide useful, analogical, general guidance as to the approach to be taken in consideration of penalties under the Commonwealth Act.