FEDERAL COURT OF AUSTRALIA
Comcare v Commonwealth of Australia [2012] FCA 1419
Citation: Comcare v Commonwealth of Australia [2012] FCA 1419 Parties: COMCARE v COMMONWEALTH OF AUSTRALIA File number: NSD 469 of 2011 Judge: GRIFFITHS J Date of judgment: 13 December 2012 Catchwords: INDUSTRIAL LAW – occupational health and safety – cadet officer injured during training conducted by the Australian Defence Force Academy – breach of s 16 Occupational Health and Safety Act 1991 (Cth) – amount of penalty under Sch 2 cl 4 – whether penalty agreed between the parties ought to be accepted – relevance of prior incidents – significance of the separate role and functions of the Australian Defence Force Academy from other sections of the Australian Defence Force. Legislation: Occupational Health and Safety Act 1991 (Cth) ss 3, 5, 9, 10, 11, 16, Sch 2 cll 2, 4 Cases cited: Australian Competition & Consumer Commission v Ithaca Ice Works Pty Ltd [2001] FCA 1716; [2002] ATPR ¶41-851
Australian Competition and Consumer Commission v Qantas Airways Ltd (2008) 253 ALR 89
Australian Competition & Consumer Commission v PRK Corporation Pty Ltd [2009] FCA 715; [2009] ATPR ¶42-295
Comcare v Commonwealth (2007) 163 FCR 207
Comcare v Commonwealth of Australia (2009) 184 IR 441
Comcare v Subsee Explorer Pty Ltd (2011) 210 IR 322
Comcare v Post Logistics Australasia Pty Limited [2012] FCAFC 168
Comcare v Transpacific Industries Pty Ltd [2012] FCA 90
Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Limited [2004] FCAFC 72; [2004] ATPR ¶41-993
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285Date of hearing: 16 August 2012 and 7 November 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 116 Counsel for the Applicant: Ms K T Nomchong SC Solicitor for the Applicant: Dibbs Barker Counsel for the Respondent: Mr B D Hodgkinson SC Solicitor for the Respondent: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 469 of 2011
BETWEEN: COMCARE
ApplicantAND: COMMONWEALTH OF AUSTRALIA
Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
13 DECEMBER 2012
WHERE MADE:
SYDNEY
THE COURT DECLARES THAT:
1.On 14 February 2010, the Commonwealth contravened clause 2(1) of Schedule 2, Part 1 of the Occupational Health and Safety Act 1991 (Cth) by reason of it having breached s 16 of that Act in that it:
(a)failed to take all reasonably practicable steps to provide and maintain a working environment (including plant and systems of work) that was safe for Officer Cadet Minchin (OC Minchin) and without risk to his health, in particular, failing to provide an outboard motor that was adequately guarded on a rigid hull inflatable boat being used in training exercises (the Boat); and
(b)failed to take all reasonably practicable steps to ensure the safety at work of, and the absence of risks at work to the health of, OC Minchin in connection with the use and handling of…
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- Case
- [2012] FCA 1419
- Decision Date
CaseChat Overview and Summary
The court found that the Commonwealth had failed to take reasonably practicable steps to protect the health and safety of its employee, Cadet Officer Minchin, by not ensuring that the boat used in the training exercise had an adequately guarded outboard motor. This was a serious breach given the high foreseeability of the risk of injury. The court considered the six prior incidents involving unguarded propellers, the absence of coordinated approaches to regulation and policy, and the failure of the Chief of the Defence Force to promulgate safety information. These factors highlighted the need for a high penalty to ensure specific and general deterrence. While Comcare did not seek to alter the jointly proposed penalty of $190,000, the court found that the breach warranted a slightly higher penalty to adequately reflect its seriousness and the need for deterrence.
The court ordered that the Commonwealth pay a pecuniary penalty of $210,000 and cover Comcare's costs. The court emphasised the importance of the Chief of the Defence Force taking appropriate steps to ensure safety and effective communication within the ADF to prevent similar incidents in the future.
Orders
Orders of the court
3. The respondent is to pay to the Commonwealth of Australia within 14 days a pecuniary penalty of $210,000 for the aforesaid contravention.
4. The respondent is to pay the applicant’s costs, such costs to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
It was an agreed fact that the Commonwealth fully cooperated with Comcare’s investigation of the Incident.Agreed proposed orders and declarations The amended agreed statement of facts included the following paragraphs, which contain various admissions by the Commonwealth:On, or shortly before, 14 February 2010, the Respondent breached its duty under section 16(1) of the OH&S Act to take all reasonably practicable steps to protect the health and safety at work of its employee (in this case, Member), OC Minchin, in that it: (a)failed to take all reasonably practicable steps to provide and maintain a working environment (including plant and systems of work) that was safe for OC Minchin and without risk to his health, in particular, failing to provide an outboard motor on the Boat that was adequately guarded;(b)failed to take all reasonably practicable steps to ensure the safety at work of, and the absence of risks at work to the health of, OC Minchin in connection with the use and handling of plant, in particular, failing to provide an outboard motor on the Boat that was adequately guarded. The reasonably practicable steps which could have been taken by the Respondent through its employing authority, the Chief of the Defence Force, which would have protected OC Minchin from or reduced his exposure to the risk of being injured from contact with the spinning outboard propeller on the Boat included the following:(a)to not use the Boat for any of the water based exercises (including the Fast Water insertion or the Fast Boat Runs) on 14 February 2010, in the absence of a full propeller guard being fitted to the propeller on the Boat; (b)to apply adequate guarding to the outboard motor propeller of the Boat prior to its use. The parties jointly proposed that, if acceptable to the Court, the following declaration and orders be made:(a)A declaration that the Commonwealth contravened clause 2(1) of Schedule 2, Part 1 of the OH&S Act in that on or about 14 February 2010 the Commonwealth breached s 16 of the OH&S Act.(b)An order that the Commonwealth pay a pecuniary penalty because of its contravention of clause 2(1) of Schedule 2, Part 1 of the OH&S Act in the amount of $190,000.(c)The Commonwealth pay Comcare’s costs as agreed or assessed. For reasons which will emerge below, I consider that some amendments are required to the proposed terms of the declaration and orders. SUMMARY OF COMCARE’S SUBMISSIONS Comcare approached the matter on the basis that it was bound by the outcome of the Court-appointed mediation conducted in November 2011. Accordingly, it did not seek to alter the jointly proposed penalty of $190,000. Having said that, however, Comcare emphasised at the resumed hearing on 7 November 2012 that that figure was not binding on the Court. It submits that the matter is one which warrants a high penalty, given the grave objective seriousness of the contravention and the Commonwealth’s failure to address the risk. The following matters are highlighted by Comcare as warranting a high civil pecuniary penalty:(a)the ADF’s organisational structure, reporting lines and apparent absence of any effective communication between the major services and the ADFA on OH&S matters was a significant causative factor in the failure of the Chief of the Defence Force to ensure compliance with the OH&S Act;(b)in particular, there was no co-ordinated approach to regulation, policy or event information-sharing;(c)the Chief of the Defence Force did not ensure promulgation of information about the six prior incidents involving unguarded propellers;(d)it is common ground that the risk which materialised in the Incident was readily apparent and may have resulted in death;(e)whilst the Army, the RAN and the RAAF have all developed their own TRFs, the Chief of the Defence Force failed to take any steps to ensure that any of those TRFs was adopted by the ADFA or that the ADFA developed its own TRF. This was all the more a serious failure because the ADFA’s employees were likely to be the least trained and therefore the most vulnerable to safety risks arising from the use of unguarded propellers on vessels in water-based activities;(f)since 2010 the RAN had recognised and addressed the inherent damage of unguarded propellers, but the Chief of the Defence Force failed to take appropriate steps to ensure that similar arrangements applied to the ADFA;(g)the risk of injury arising from the absence of propeller guards had been highlighted by six incidents dating back to September 2004, including three incidents which occurred on 11 February 2009 involving three ADFA cadets who came into contact with vessels with unguarded propellers in the same place as where OC Minchin was injured, Lake Burrinjuck;(h)despite those six earlier incidents, the Chief of the Defence Force failed to take any of the following steps prior to the Incident:·direct that full propeller guards be installed on all boats used for training exercises across the ADF;·discontinue the use of boats within the ADF which did not have propeller guards;·advise the ADFA of the first three incidents; or·disseminate to the ADFA any of Comcare’s reports and recommendations in respect of the first three incidents;(i)it was only after very serious injuries were sustained by OC Minchin on 14 February 2010 that the Chief of the Defence Force adopted a policy of mandating caged propellers on boats used during Army cadet training; (j)this was a serious contravention in circumstances where there was a high level of foreseeability of the risk of injury having regard to the following matters:·the Chief of the Defence Force must have known the conditions in which the Boat was required to operate and that those conditions created a high foreseeability of the risk of serious injury;·the Chief of the Defence Force’s actions (or inactions) constituted a failure to address a known or foreseeable risk; and·the Chief of the Defence Force failed to take reasonably practicable steps to ensure the safety of the Boat’s operations; and(k)although the Commonwealth admits that it was aware of readily available steps to address the foreseeable risk of injury (i.e. by fitting full propeller guards), no action was taken to convey those matters to the ADFA, a failure which reflects poorly on the Chief of the Defence Force in terms of the lack of coordination and inter-communication with the ADFA as part of the ADF’s organisational structure;(l)taking into account the six previous incidents, there is a need for specific and general deterrence in this matter.