Comcare v Commonwealth of Australia

In the case of Comcare v Commonwealth of Australia, the respondent, the Commonwealth of Australia, was found to have breached its obligations under the Occupational Health and Safety Act 1991 (Cth) when a cadet officer was injured during a training exercise conducted by the Australian Defence Force Academy (ADFA). Comcare, the applicant, sought a declaration of contravention, a pecuniary penalty, and costs. The primary legal issue the court had to decide was whether the penalty agreed between the parties should be accepted, considering the context of the breach and the need for deterrence. The court also had to consider the relevance of prior incidents and the distinct roles and functions of the ADFA within the Australian Defence Force.

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.