Comcare v Transpacific Industries Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Comcare v Transpacific Industries Pty Ltd [2014] FCA 1420

Citation: Comcare v Transpacific Industries Pty Ltd [2014] FCA 1420
Parties: COMCARE v TRANSPACIFIC INDUSTRIES PTY LTD
File number: SAD 58 of 2014
Judge: MANSFIELD J
Date of judgment: 23 December 2014
Catchwords: INDUSTRIAL LAW – occupational health and safety – inhalation of sodium sulphide – breach of s 16 of the Occupational Health and Safety Act 1991 (Cth) – pecuniary penalty – liability admitted – seriousness of the breach – foreseeable risk – lack of adequate supervision and training – inadequate risk assessment and management – specific and general deterrence – mitigating factors – contrition – corrective measures taken
Legislation:

Occupational Health and Safety Act 1991 (Cth)
Work Health and Safety (Transitional and Consequential Provisions) Act 2011 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Occupational Health and Safety (Safety Standards) Regulations 1994 (Cth)
Crimes Act 1914 (Cth)
Evidence Act 1995 (Cth)
Cases cited:

Comcare v Commonwealth [2012] FCA 1419 cited
Comcare v Post Logistics Australasia Pty Ltd (2012) 207 FCR 178 applied
Comcare v Commonwealth (2007) 163 FCR 207 applied
Workcover Authority of New South Wales v Profab Industries Pty Ltd (2000) 49 NSWLR 700 cited
DPP v Amcor Packaging Pty Ltd (2005) 11 VR 557 cited
Comcare v Transpacific Industries Ltd [2012] FCA 90 applied
Comcare v John Holland Pty Ltd [2009] FCA 771 cited
Comcare v Linfox Australia Pty Ltd [2010] FCA 793 cited
Comcare v Australian Postal Corporation [2011] FCA 1533 cited
Comcare v Commonwealth [2011] FCA 1043 cited
Comcare v Commonwealth (2009) 184 IR 441 cited
Date of hearing: 31 October 2014
Place: Adelaide
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 92
Counsel for the Applicant: G Walker
Solicitor for the Applicant: Thomson Geer
Counsel for the Respondent: I Colgrave
Solicitor for the Respondent: Herbert Smith Freehills

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 58 of 2014
BETWEEN:

COMCARE
Applicant
AND:

TRANSPACIFIC INDUSTRIES PTY LTD
Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

23 DECEMBER 2014

WHERE MADE:

ADELAIDE

THE COURT DECLARES THAT:

1.On 7 December 2011, the Respondent contravened subcl 2(1) of Sch 2 of the Occupational Health and Safety Act 1991 (Cth) by reason of it having breached s 16(1) of the Occupational Health and Safety Act 1991 (Cth) by having failed to take all reasonably practicable steps to protect the health and safety of Graeme Shore and Robert Collins by:

(a)failing to take all reasonably practicable steps to provide and maintain a working environment, including plant and systems of work, that was safe for Mr Shore and Mr Collins and without risk to their health;

(b)failing to take all reasonably practicable steps to ensure the safety at work of, and the absence of risks at work to the health of Mr Shore and Mr Collins in connection with the handling and storage of hazardous substances;

(c)failing to take all reasonably practicable steps to provide Mr Shore and Mr Collins with the information,…

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Details
Case
[2014] FCA 1420
Decision Date

CaseChat Overview and Summary

In Comcare v Transpacific Industries Pty Ltd, the court dealt with an occupational health and safety matter concerning the inhalation of sodium sulphide by employees, Mr Shore and Mr Collins. The primary legal issue was whether the employer, Transpacific Industries Pty Ltd, had breached section 16 of the Occupational Health and Safety Act 1991 (Cth) by failing to take all reasonably practicable steps to protect the health and safety of its employees during the handling and storage of hazardous substances. This included ensuring a safe working environment, providing necessary information, instruction, training, and supervision.

The court had to determine the seriousness of the contravention, considering factors such as the level of training provided to the employees, the foreseeability of the risk, potential harm, and the employer's management of those risks. The court found that while the employees had received some training, there were significant lapses in risk assessment and management, making the risk foreseeable and the potential harm serious. The employer's failure to adequately supervise and train the employees contributed to the contravention. The court also considered the need for specific and general deterrence, the employer's contrition, and corrective measures taken. Ultimately, the court found the contravention to be serious and imposed a penalty of $110,000.

The court declared that Transpacific Industries Pty Ltd contravened subcl 2(1) of Sch 2 of the Occupational Health and Safety Act 1991 (Cth) by breaching s 16(1) through its failure to protect the health and safety of Mr Shore and Mr Collins. The court ordered that Transpacific Industries Pty Ltd pay the Commonwealth a pecuniary penalty of $110,000 and the Applicant's costs of the application.

Orders

Orders of the court

2. The Respondent pay the Commonwealth a pecuniary penalty of $110,000 because of its contravention of subcl 2(1) of the Occupational Health and Safety Act 1991 (Cth).

3. The Respondent pay the Applicant costs of the application.

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 Comcare v Commonwealth [2011] FCA 1043 (Cadet Huestis), a cadet of the defence force, Cadet Huestis, was hospitalised but not killed, due to exposure to a peanut protein despite having a peanut allergy. The circumstances were similar to a previous case, Comcare v Commonwealth (2009) 184 IR 441, where a cadet with a severe peanut allergy died due to a provision of a meal containing a peanut-based product. This prompted the introduction of the policy to address the particular health challenge. However, in the circumstances of Cadet Huestis, the implementation of that policy was deficient. There was a failure to translate into the record keeping system the declaration made by the cadet’s parents as to his allergy. The particular officer of cadets failed to fully translate that knowledge through the chain of commence to ensure that the cadet was not issued with the harmful meal. A penalty of $150,000 was imposed. Conclusion It is clear that the primary consideration is the seriousness of the contravention. In my view, the contravention is serious, notwithstanding that Mr Shore did not suffer from any long-term injury. The risks of handling a hazardous substance such as SS in the manner that Mr Shore did was obvious. As I have noted, there is also a need for specific and general deterrence, to remind employers of their obligations to workplace health safety. In this case, I find the lack of risk assessment with respect to the Work to be serious. After considering all the circumstances, I impose a penalty in the mid-range to be appropriate. I fix a pecuniary penalty in the sum of $110,000. That penalty has been reduced by a substantial amount from the figure I would otherwise have imposed because of the particular considerations relevant to the Respondent which I have discussed above. There will be a declaration and orders as follows:THE COURT DECLARES THAT:(1)On 7 December 2011, the Respondent contravened subcl 2(1) of Sch 2 of the Occupational Health and Safety Act 1991 (Cth) by reason of it having breached s 16(1) of the Occupational Health and Safety Act 1991 (Cth) by having failed to take all reasonably practicable steps to protect the health and safety of Mr Shore and Mr Collins by:(a)failing to take all reasonably practicable steps to provide and maintain a working environment, including plant and systems of work, that was safe for Mr Shore and Mr Collins and without risk to their health;(b)failing to take all reasonably practicable steps to ensure the safety at work of, and the absence of risks at work to the health of Mr Shore and Mr Collins in connection with the handling and storage of hazardous substances;(c)failing to take all reasonably practicable steps to provide Mr Shore and Mr Collins with the information, instruction, training and supervision necessary to enable them to perform the Work in a matter/manner that was safe and without risk to their health.THE COURT ORDERS THAT:(2)The Respondent pay the Commonwealth a pecuniary penalty of $110,000 because of its contravention of subcl 2(1) of the Occupational Health and Safety Act 1991 (Cth).(3)The Respondent pay the Applicant costs of the application.

Ratio Decidendi

Legal Principle Established

I adopt that approach, and will consider the relevant factors applicable to this matter in the light of the submissions of the parties. In my view, the main considerations in these matters are the seriousness of the contravention and the need for specific and general deterrence. CONSIDERATIONSeriousness of the Contravention A contravention of s 16 of the OHS Act occurs when an employer exposes its employees to risk. This is clear in the text of s 16(1)-(2) of the OHS Act. It is not an element of the offence that the exposure to risk results in any injury. Thus, the gravity of the consequence does not itself inform the seriousness of the offence or the amount of the penalty: Trooper Lawrence at [120]. The seriousness of the contravention ought to be considered objectively: Trooper Lawrence at [120]; Workcover Authority of New South Wales v Profab Industries Pty Ltd (2000) 49 NSWLR 700 (Profab Industries) at 714. Similarly, it was observed in DPP v Amcor Packaging Pty Ltd (2005) 11 VR 557 at 565:[I]t is the avoidance of those consequences which, when considering the objective seriousness of the offence, constitutes the raison d’être for the establishment of the legislated regime in the first place. To a substantial extent the seriousness of a breach must be assessed by reference to those potential consequences and the measure of evidenced disregard concerning the safety of employees in the circumstances. In this matter, I consider the factors relevant to the determination of the seriousness of the contravention are:(1)the level of training provided to Mr Shore and Mr Collins; (2)the foreseeability of the risk; (3)the potential harm; and (4)the Respondent’s management of those risks. At the time of the accident, Mr Shore and Mr Collins had been full-time employees of the Respondent for three years. At the time of their commencement, they worked in the Solvent Distillation Plant at the Workplace and were provided with an “on the job” induction that included safety training and instruction regarding the need to use, fit and wear protective personal equipment when working. From February 2009 and June 2011, Mr Shore attended and passed six training modules which appear to have been delivered through one or two day sessions by or on behalf of the Respondent:(1)“Manual Handling” in 2 February 2009; (2)“Safety leadership” in 20 October 2010; (3)“Chemical management, hazardous goods and MSDS” on 9 February 2011; (4)“Job safety and environmental analysis” on 11 February 2011; (5)“Emergency awareness” on 11 February 2011; and (6)“Risk management” on 3 June 2011. Similarly, Mr Collins attended and passed the following training modules which appear to have been delivered through one or two day sessions by or on behalf of the Respondent:(1)“Reporting injuries” on 9 February 2011; (2)“Spills management” on 9 February 2011; (3)“Chemical management, hazardous goods and MSDS” on 11 February 2011; (4)“Emergency awareness” on 11 February 2011; and (5)“Risk management” on 3 June 2011.