FEDERAL COURT OF AUSTRALIA
Comcare v Linfox Australia Pty Ltd [2015] FCA 61
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
VID 1354 of 2013
BETWEEN: COMCARE
ApplicantAND: LINFOX AUSTRALIA PTY LTD (ACN 004 718 647)
Respondent
JUDGE:
FLICK J
DATE OF ORDER:
12 FEBRUARY 2015
WHERE MADE:
SYDNEY
THE COURT DECLARES:
On 14 October 2011, Linfox Australia Pty Ltd contravened…
Continue reading Comcare v Linfox Australia Pty Ltd
Sign in free to access the full text
Details
- AGLC
- Comcare v Linfox Australia Pty Ltd [2015] FCA 61
- Case
- [2015] FCA 61
- Decision Date
CaseChat Overview and Summary
Comcare initiated proceedings against Linfox Australia Pty Ltd in relation to safety breaches that resulted in an employee's injury during the unloading of Ikea cardboard pallets from a shipping container. The case was heard in the Federal Circuit Court of Australia. The central dispute was whether Linfox had failed to take all reasonably practicable steps to ensure the safety of its employees, specifically in the context of unloading Ikea cardboard pallets from a shipping container.
The legal issues before the court encompassed whether Linfox had adequately identified hazards, assessed risks, developed operating procedures, prohibited employees from entering the shipping containers during unloading, provided appropriate equipment, informed and instructed employees about special dangers, trained employees in specific operating procedures, and supervised employees effectively. The court was also required to determine the appropriate penalty to be imposed on Linfox in light of these breaches.
The court concluded that Linfox had indeed failed on multiple fronts to ensure the safety of its employees. It found that Linfox did not conduct an adequate hazard identification or risk assessment, did not develop a specific operating procedure, and did not prohibit employees from entering the shipping containers while the forklift was operational. Furthermore, the court found that Linfox failed to provide appropriate equipment, inform and instruct employees about the special dangers involved, train employees in specific operating procedures, and supervise employees effectively. The court considered the agreement between the parties regarding the penalty amount, the steps taken by Linfox after the accident, and the previously acknowledged risks associated with operating forklifts. Despite these factors, the court found that they did not warrant a lesser penalty. Consequently, the court granted a declaration as proposed and ordered a penalty of $90,000, which was deemed appropriate given the agreed range between the parties. Additionally, the court ordered Linfox to pay Comcare's costs.
The legal issues before the court encompassed whether Linfox had adequately identified hazards, assessed risks, developed operating procedures, prohibited employees from entering the shipping containers during unloading, provided appropriate equipment, informed and instructed employees about special dangers, trained employees in specific operating procedures, and supervised employees effectively. The court was also required to determine the appropriate penalty to be imposed on Linfox in light of these breaches.
The court concluded that Linfox had indeed failed on multiple fronts to ensure the safety of its employees. It found that Linfox did not conduct an adequate hazard identification or risk assessment, did not develop a specific operating procedure, and did not prohibit employees from entering the shipping containers while the forklift was operational. Furthermore, the court found that Linfox failed to provide appropriate equipment, inform and instruct employees about the special dangers involved, train employees in specific operating procedures, and supervise employees effectively. The court considered the agreement between the parties regarding the penalty amount, the steps taken by Linfox after the accident, and the previously acknowledged risks associated with operating forklifts. Despite these factors, the court found that they did not warrant a lesser penalty. Consequently, the court granted a declaration as proposed and ordered a penalty of $90,000, which was deemed appropriate given the agreed range between the parties. Additionally, the court ordered Linfox to pay Comcare's costs.
Orders
Orders of the court
1. The Respondent is to pay the Commonwealth a pecuniary penalty of $90,000.
2. The Respondent is to pay the costs of the Applicant.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
In concluding that the penalty should be at the very upper limit of that agreed between the parties, consideration has nevertheless also been given to:·the agreement reached between the parties, that agreement avoiding the prospect of a potentially difficult hearing (cf. Trade Practices Commission v CSR Limited (1991) ATPR 41–076 at 52,152–52,153 per French J; Australian Competition and Consumer Commission v BAJV Pty Ltd [2014] FCAFC 52 at [39] per Rares, Jessup and Flick JJ). Although the agreement between the parties in the present proceeding may have occurred only shortly before the hearing, the “co-operation” of Linfox remains of relevance (DP World Sydney Limited v Maritime Union of Australia (No 2) [2014] FCA 596 at [30]); and·the steps taken by Linfox subsequent to the accident.Consideration has also been given to: ·the fact that prior to the accident there were in place published Safe Working Procedures which identified the risks associated with “Loading & Unloading Product From Container” and “Safety Rules” stating that an employee was to “Stay at least 2 metres clear from moving mobile equipment”. This “2 metre rule” was a rule emphasised at various “toolbox meetings” prior to the accident. Although the Risk Assessment conducted in October 2011 extended the “exclusion zone” from 2 metres to 3 metres and specifically precluded employees from entering a container whilst a forklift was operating, the risks associated with operating forklifts was – it was correctly submitted on behalf of Linfox – a risk previously acknowledged and addressed. Such factors have been taken into account. But they do not, it is concluded, warrant any lesser penalty being imposed.CONCLUSIONS A declaration should be granted in the form proposed. A penalty should be imposed in the sum of $90,000. The agreement between the parties as to the quantum of an appropriate penalty has assisted the conclusion that the sum of $90,000 is “within the range” of that which should be imposed. There is no reason why costs should not follow the event. THE COURT DECLARES:On 14 October 2011, Linfox Australia Pty Ltd contravened clause 2(1) of Schedule 2 of the Occupational Health and Safety Act 1991 (Cth) by reason of it having breached s 16(1) of the said Act in that it failed to take all reasonably practicable steps to protect the health and safety at work of its employees by:a.failing to conduct an adequate hazard identification of the task of unloading Ikea cardboard pallets from a shipping container; b.failing to conduct an adequate risk assessment for the task of unloading Ikea cardboard pallets from a shipping container;c.failing to develop a specific operating procedure for the task of unloading Ikea cardboard pallets from shipping containers; d.failing to prohibit its employees from entering the shipping containers during unloading operations while the forklift operator was in the container and the forklift was operational;e.failing to provide an appropriate forklift for the task of unloading the Ikea cardboard pallets because the guard on the mast was too high;f.failing to inform and instruct its employees in the special dangers and risks associated with unloading Ikea cardboard pallets in shipping containers that differed from the dangers and risks associated with the other work performed by Linfox;g.failing to instruct and train its employees in a specific operating procedure for the task of unloading the Ikea cardboard pallets from shipping containers; and h.failing to supervise its employees in a manner that enabled them to perform their work of unloading the Ikea cardboard pallets from shipping containers safely.AND THE COURT ORDERS THAT:1. The Respondent is to pay the Commonwealth a pecuniary penalty of $90,000.2. The Respondent is to pay the costs of the Applicant.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.