FEDERAL COURT OF AUSTRALIA
Comcare v Post Logistics Australasia Pty Limited [2011] FCA 1422
Citation: Comcare v Post Logistics Australasia Pty Limited [2011] FCA 1422 Parties: COMCARE v POST LOGISTICS AUSTRALASIA PTY LIMITED File number: NSD 1451 of 2010 Judge: BUCHANAN J Date of judgment: 13 December 2011 Catchwords: INDUSTRIAL LAW – breach of s 16 of the Occupational Health and Safety Act 1991 (Cth) – liability admitted – question of pecuniary penalty to be imposed – assessment must take into account the particular circumstances of the incident – whether principles should be adopted from criminal law sentencing process – penalty should reflect objective seriousness of breach – assessment must also focus on the practical steps that could be taken to protect the health and safety of employees at the workplace – penalty imposed which differs from assessment offered by the parties Legislation: Australian Postal Corporation Act 1989 (Cth)
Evidence Act 1995 (Cth) ss 140, 141, 191
Occupational Health and Safety Act 1991 (Cth) ss 16, 18, 19, 20, 21, sch 2 cl 2, 4, 8Cases cited: Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
Comcare v Australian Postal Corporation [2011] FCA 530
Comcare v Commonwealth (2007) 163 FCR 207
Comcare v Commonwealth of Australia [2009] FCA 700; (2009) 110 ALD 252; (2009) 257 ALR 462
Comcare v John Holland Rail Pty Ltd [2009] FCA 771; (2009) 188 IR 415
Comcare v Post Logistics Australasia Pty Ltd [2008] FCA 1987; (2008) 107 ALD 578; (2008) 178 IR 200
Coochey v Commonwealth (2005) 149 FCR 312
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
Markarian v R (2005) 228 CLR 357Date of hearing: 18 November 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 47 Counsel for the Applicant: Ms K T Nomchong Solicitor for the Applicant: Dibbs Barker Counsel for the Respondent: Mr A R Moses SC with Mr Y Shariff Solicitor for the Respondent: Holding Redlich
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1451 of 2010
BETWEEN: COMCARE
ApplicantAND: POST LOGISTICS AUSTRALASIA PTY LIMITED
Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
13 DECEMBER 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.On 31 March 2008, Post Logistics Australasia Pty Limited contravened clause 2(1) of Schedule 2, Part 1 of the Occupational Health and Safety Act 1991 (Cth) by reason of it having breached section 16(1) of the said Act in that:
(a)On 31 March 2008, its employee Ms Roslyn Mary Borg (née Piscopo) was walking alongside a forklift being operated by its contractor Mr Kevin Cox and was approximately a metre away from the forklift as it was being operated;
(b)At that time, Mr Cox was assisting Ms Borg by using the forklift to move a pallet to the ground as it was too high for Ms Borg to reach;
(c)As Mr Cox operated the forklift to put the pallet down on the ground, the forklift ran over Ms Borg’s right foot…
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- Case
- [2011] FCA 1422
- Decision Date
CaseChat Overview and Summary
The court was required to consider whether the principles of criminal law sentencing should inform the penalty assessment and to ensure that the penalty reflected the gravity of the breach. It also had to evaluate the practical measures that could have been implemented to safeguard Ms Borg's health and safety at the workplace. The court needed to balance these considerations to determine a penalty that was both proportionate and dissuasive.
The court determined that while the assessment of a penalty should incorporate elements from the criminal law sentencing process, it should primarily focus on the objective seriousness of the breach and the feasible steps that could have been taken to prevent it. The court concluded that the admitted breach was serious due to the nature of the injury and the failure to implement basic safety measures. It imposed a penalty of $80,000, differing from the assessment offered by the parties, and ordered Post Logistics Australasia Pty Limited to pay this amount within 14 days, along with the applicant's costs.
Orders
Orders of the court
1. On 31 March 2008, Post Logistics Australasia Pty Limited contravened clause 2(1) of Schedule 2, Part 1 of the Occupational Health and Safety Act 1991 (Cth) by reason of it having breached section 16(1) of the said Act in that:
(a) On 31 March 2008, its employee Ms Roslyn Mary Borg (née Piscopo) was walking alongside a forklift being operated by its contractor Mr Kevin Cox and was approximately a metre away from the forklift as it was being operated;
(b) At that time, Mr Cox was assisting Ms Borg by using the forklift to move a pallet to the ground as it was too high for Ms Borg to reach;
(c) As Mr Cox operated the forklift to put the pallet down on the ground, the forklift ran over Ms Borg’s right foot causing her small toe on that foot to be fractured.
2. In this regard Post Logistics Australasia Pty Limited breached its duty under section 16(1) of the Occupational Health and Safety Act 1991 (Cth) to take all reasonably practical steps to protect the health and safety at work of its employee Ms Borg in that it:
(a) failed to provide adequate training or instruction to Mr Cox and Ms Borg to ensure that they did not engage in the conduct set out above.
(b) failed to ensure that there was an adequate traffic management system in place to prevent or reduce the risk of Ms Borg coming into contact with a moving forklift.
3. The Commonwealth entity to which the conduct related is Post Logistics Australasia Pty Limited.
4. The respondent is to pay to the Commonwealth of Australia within 14 days a pecuniary penalty of $80,000 for the aforesaid breach.
5. 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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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