Comcare v John Holland Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Comcare v John Holland Pty Ltd [2015] FCA 388

Citation: Comcare v John Holland Pty Ltd [2015] FCA 388
Parties: COMCARE v JOHN HOLLAND PTY LTD (ACN 004 282 268)
File number: QUD 778 of 2013
Judge: COLLIER J
Date of judgment: 23 April 2015
Catchwords: INDUSTRIAL LAW – Occupational Health and Safety – statement of agreed facts – agreement by respondent concerning contravention of legislation – failure of respondent to take reasonable steps to protect health and safety – injury of employee – agreed penalty and declarations as to contravention – penalty assessment ultimately for the Court – relevant principles to be applied – mitigating factors including contrition – not systemic failure of safety standards – comparable cases – imposition of pecuniary penalty – declarations of contravention – award of costs considered
Legislation: Federal Court Act 1976 (Cth) s 21
Occupational Health and Safety Act 1991 (Cth) ss 16(1), 16(2), 16(2)(a)(i), 16(2)(b)(i), 16(2)(c), 16(2)(e)
Cases cited: Barbaro v The Queen (2014) 88 ALJR 372
Comcare v Australian Postal Corporation [2011] FCA 530
Comcare v Australian Postal Corporation [2011] FCA 1533
Comcare v Commonwealth of Australia (2007) 163 FCR 207
Comcare v John Holland Pty Ltd [2014] FCA 1191
Comcare v Linfox Australia Pty Ltd [2015] FCA 61
Comcare v Post Logistics Australasia Pty Ltd (2012) 207 FCR 178
Comcare v Transpacific Industries Pty Ltd [2014] FCA 1420
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383
Thiess Pty Ltd and Hochtief AG v Industrial Court of New South Wales (2010) 205 IR 263
Date of hearing: 22 April 2015
Date of publication of reasons: 28 April 2015
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 39
Counsel for the Applicant: Mr A Hoare
Solicitor for the Applicant: Holding Redlich
Counsel for the Respondent: Mr HJ Dixon SC with Mr AB Gotting
Solicitor for the Respondent: Corrs Chambers Westgarth

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 778 of 2013
BETWEEN:

COMCARE
Applicant
AND:

JOHN HOLLAND PTY LTD (ACN 004 282 268)
Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

23 APRIL 2015

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.Pursuant to sub-clause 2(1)(a) of Schedule 2, Part 1 of the Occupational Health and Safety Act 1991 (Cth) (“OHS Act”) that the respondent contravened sub-section 16(1) of the OHS Act on 1 December 2011 by failing to take all reasonably practicable steps to protect the health and safety at work of the respondent’s employees, and in particular Mr Alexander Hogg, by failing to:

(a)maintain a working environment that was safe for the respondent’s employees and without risk to their health;

(b)in relation to a workplace under the respondent’s control, ensure that the workplace was safe for employees and without risk to their health;

(c)ensure the safety at work of, and the absence of risks at work to the health of, the employees in connection with the use of plant; and

(d)provide the respondent’s employees with the information, instruction,…

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Details
Case
[2015] FCA 388
Decision Date

CaseChat Overview and Summary

Comcare, the plaintiff, initiated proceedings against John Holland Pty Ltd, the defendant, in relation to an incident that occurred on 1 December 2011 at the C3 Cross Passage Tunnel during the Airport Link Tunnel project in Brisbane. The incident involved an employee, Mr Alexander Hogg, who was injured due to the failure of John Holland to take reasonable steps to protect the health and safety of its employees. This case pertains to the contravention of subsection 16(1) of the Occupational Health and Safety Act 1991 (Cth) by John Holland.

The primary legal issues before the Court were whether the proposed declarations of contravention were appropriate and what penalty should be imposed on John Holland for the contravention of subsection 16(1) of the OHS Act. The Court also had to consider the costs associated with the proceeding.

In determining the appropriate penalty, the Court applied the principles outlined in Comcare v Commonwealth of Australia (2007) 163 FCR 207, including the need to compel attention to occupational health and safety, the foreseeability of the risk of injury, and the requirement for employers to take all practicable precautions to ensure safety in the workplace. The Court considered the mitigating factors, such as the contrition shown by John Holland, and determined that the contravention was not a result of a systemic failure of safety standards. After examining comparable cases, the Court imposed a pecuniary penalty of $110,000 on John Holland. The Court also made the agreed declaratory orders and awarded costs to Comcare as agreed or taxed.

The final orders of the Court included a declaration that John Holland contravened subsection 16(1) of the OHS Act on 1 December 2011, a pecuniary penalty of $110,000, and an order for John Holland to pay Comcare's costs in the proceeding as agreed or taxed.

Orders

Orders of the court

1. Pursuant to sub-clause 2(1)(a) of Schedule 2, Part 1 of the Occupational Health and Safety Act 1991 (Cth) (“OHS Act”) that the respondent contravened sub-section 16(1) of the OHS Act on 1 December 2011 by failing to take all reasonably practicable steps to protect the health and safety at work of the respondent’s employees, and in particular Mr Alexander Hogg, by failing to:

(a) maintain a working environment that was safe for the respondent’s employees and without risk to their health;

(b) in relation to a workplace under the respondent’s control, ensure that the workplace was safe for employees and without risk to their health;

(c) ensure the safety at work of, and the absence of risks at work to the health of, the employees in connection with the use of plant; and

(d) provide the respondent’s employees with the information, instruction, training and supervision necessary to enable them to perform their work in a manner that was safe and without risk to their health.

2. Pursuant to clause 4 of Schedule 2, Part 1 of the OHS Act, the respondent pay a pecuniary penalty in respect of the contravention of sub-section 16(1) of the OHS Act in the amount of $110,000.

3. The respondent pay the applicant’s costs in the proceeding as agreed or taxed.

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

Background

Background to the litigation

I have formed this view for the following reasons.Agreed Background As I have already explained, before the Court was an agreed statement of facts filed on behalf of both parties, on the morning of the hearing. This document was helpful in identifying key background information concerning the workplace and structures used by John Holland and the incident the subject of these proceedings. In October 2011, the John Holland commenced constructing the C3 Cross Passage Tunnel (“the Tunnel”) on the Airport Link Tunnel project (“the Workplace”). This is a major infrastructure project in the city of Brisbane. At this time, John Holland commenced using three metre arch form structures (“arch form structures”) to guide and hold wet concrete to form the arched roof and sides of the Tunnel. In or about late October 2011, John Holland commenced manufacturing a metal platform being 900 millimetres by 850 millimetres and weighing 47 kilograms (“metal bridge”) which was intended to sit between walkways on each of the arch form structures. After 3 November 2011, John Holland commenced using the metal bridge between two arch form structures in the Tunnel during the pouring of concrete in the Tunnel. The design of the structure was such that the metal bridge was attached to the arch form structures, by four locator brackets on the metal bridge being placed over and resting upon steel bars between the walkways on the arch form structures. This structure was in place for the purposes of pouring concrete in the Tunnel for the period 3 November 2011 to 1 December 2011 (“the relevant period”). During the relevant period, the metal bridge was attached to the arch form structures between the walkways on fourteen occasions during the pouring of concrete in the Tunnel. On each occasion the metal bridge was suspended approximately 4.7 metres above the floor of the Tunnel during the pouring of concrete. During the relevant period employees of John Holland would remove the metal bridge from the arch form structures on each occasion in order to facilitate the movement of the structure from one location to another.The Incident The incident the subject of these proceedings occurred at the Workplace on 1 December 2011. Relevantly, the incident involved four employees of the John Holland (“the work crew”), who were preparing to lower the arch form structures prior to moving the arch form structures to a new location in the Tunnel. This work crew consisted of the following employees of John Holland:·Mr Brett Pengelly (Mr Pengelly) – Shift boss and supervisor;·Mr Alexander Hogg (Mr Hogg) – Leading hand and tunneller;·Mr Ben Bambling (Mr Bambling) – Labourer and tunneller; and·Mr Owen Meikle (Mr Meikle) – Telescopic handler (telehandler) operator and tunneller. It is agreed between the parties that none of the work crew removed the metal bridge from the arch form structures prior to moving the arch form structures. However, as part of the preparations to move the arch form structure, the work crew established a five metre soft exclusion zone, which did not apply to those employees involved in the separation of the arch form structures, including the work crew. During preparations to move the arch form structures, the work crew intended to move one of the arch form structures about 100 millimetres to 200 millimetres away from the other arch form structure and arranged for chains to be connected between the bottom of the first arch form structures and the jib of a telehandler.

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

In light of the fact that John Holland has admitted contravention of subs 16(1) of the OHS Act, and that an agreed position has been reached by the parties in respect of an appropriate order, it is the task of the Court to consider appropriate orders, including declarations, and a penalty which:·reflects the objective seriousness of the contravention;·gives effect to the objects of the Act; and·will maintain public confidence in the Act as a means of regulating workplace health and safety.(cf Comcare v John Holland [2014] FCA 1191.)Declaration John Holland admits contravening subs 16(1) of the OHS Act, in terms of failing to take all reasonably practical steps to protect the health and safety at work of its employees, including Mr Hogg. The Court has a wide discretionary power under s 21 of the Federal Court Act 1976 (Cth) to make declarations. In this case:·The proposed declaratory order relates to conduct of John Holland which contravenes the Act.·Matters relevant to the proposed declaration have been identified by the parties with precision.·I consider that it is in the public interest for Comcare to seek to have the order made, and for the Court to make that order.·There is a legal controversy between the parties, which the declaration resolves. In my view it is appropriate that the Court makes the declaratory order of liability upon which the parties have agreed.Relevant principles General principles informing the exercise of the Court’s discretion in respect of pecuniary penalties were outlined by Madgwick J in Comcare v Commonwealth of Australia (2007) 163 FCR 207, at [120]:(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 consequence of an accident does not 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 objections 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;(ix)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.