Comcare v Transpacific Industries Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Comcare v Transpacific Industries Pty Ltd [2012] FCA 90

Citation: Comcare v Transpacific Industries Pty Ltd [2012] FCA 90
Parties: COMCARE v TRANSPACIFIC INDUSTRIES PTY LTD
File number: WAD 412 of 2010
Judge: BARKER J
Date of judgment: 14 February 2012
Catchwords: INDUSTRIAL LAW – breach of s 16 of the Occupational Health and Safety Act 1991 (Cth) – quantity of pecuniary penalty – liability admitted – particular circumstances – fatality – seriousness of breach – deterrence – mitigating factors
Legislation: Corporations Act 2001 (Cth)
Occupational Health and Safety Act 1991 (Cth) cl 2(1)(a) of Pt 1 of Sch 2, cl 4 of Pt 1 of Sch 2, s 4(2), s 5, s 16(1), s 77, cl 5(1) of Pt 1 of Sch 2, s 82(1)
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 68, Pt VIII
Occupational Health and Safety (Safety Standards) Regulations 1994 (Cth) Reg 13.03
Cases cited: Comcare v Commonwealth of Australia [2007] FCA 662; (2007) 163 FCR 207
Comcare v Commonwealth of Australia [2009] FCA 700; (2009) 184 IR 441
Comcare v John Holland Rail Pty Ltd [2009] FCA 771; (2009) 188 IR 415
Comcare v John Holland Pty Ltd (No 2) [2009] FCA 1515; (2009) 191 IR 223
Comcare v Linfox Australia Pty Ltd (ACN 004 718 647) [2010] FCA 793; (2010) 198 IR 160
Comcare v National Gallery of Australia [2007] FCA 1548; (2007) 98 ALD 67
Comcare v Post Logistics Australasia Pty Ltd [2008] FCA 1987; (2008) 178 IR 200
Comcare v Post Logistics Australasia Pty Limited [2011] FCA 1422
Comcare v The Commonwealth of Australia [2010] FCA 1331; (2010) 201 IR 93
Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch’ng) (1999) 90 IR 464
Workcover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
Date of hearing: 8 February 2012
Place: Perth
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 61
Counsel for the Applicant: Ms LB Black
Solicitor for the Applicant: DLA Piper Australia
Counsel for the Respondent: Mr JRB Ley
Solicitor for the Respondent: Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 412 of 2010
BETWEEN:

COMCARE
Applicant
AND:

TRANSPACIFIC INDUSTRIES PTY LTD
Respondent

JUDGE:

BARKER J

DATE OF ORDER:

14 FEBRUARY 2012

WHERE MADE:

PERTH

THE COURT DECLARES AND ORDERS THAT:

1.The Court declares that on 2 September 2009 at the premises known as Alcoa Wagerup Alumina Refinery in the State of Western Australia, the respondent contravened cl 2(1)(a) of Pt 1 of Sch 2 of the Occupational Health and Safety Act 1991 (Cth) (OHS Act) in that it breached s 16(1) of the OHS Act by its failure to take all reasonably practicable steps to protect the health and safety at work of its employees by:

(a)failing to identify that open manholes without any barriers or signage in place, which provided access to the middle chamber of Flash Tank 21 at the…

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Details
Case
[2012] FCA 90
Decision Date

CaseChat Overview and Summary

The case of Comcare v Transpacific Industries Pty Ltd involved a dispute over a breach of occupational health and safety legislation, specifically Section 16 of the Occupational Health and Safety Act 1991 (Cth). The respondent, Transpacific Industries Pty Ltd, admitted liability for the breach, which resulted in a fatality. The primary legal issue before the court was the determination of an appropriate pecuniary penalty for the breach. Given the admitted breach and the fatality, the court had to consider various factors to determine the appropriate penalty, including the seriousness of the breach, the need for deterrence, and any mitigating factors.

The court considered several principles and precedents in determining the penalty, drawing from cases such as Comcare v Commonwealth of Australia [2007] FCA 662 (Trooper Lawrence) and Comcare v Commonwealth of Australia [2009] FCA 700 (Cadet Francis). The seriousness of the contravention was highlighted as a central consideration, with factors such as the foreseeability of the risk, the employer's response to the risk, the potential for serious personal harm or death, and the systemic nature of the failure being weighed. The court also considered the size of the organisation, its capacity to implement safety measures, and the effectiveness of its safety protocols and employee education. The respondent's reaction to the incident and the proceedings, including cooperation and early admission of responsibility, were also taken into account.

In determining the appropriate penalty, the court applied these principles to the specific circumstances of the case. The fatality, the systemic nature of the safety failure, and the lack of adequate systems to prevent such an incident were key factors that led to a substantial penalty. The court also considered the respondent's capacity to pay and the need for deterrence to prevent similar incidents in the future. Ultimately, the court found that the appropriate penalty would serve both as a deterrent and a reflection of the seriousness of the breach, while also considering the respondent's cooperation and any mitigating factors. The court ordered the respondent to pay a specified amount as a penalty and to cover the applicant’s costs of the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

At the hearing the respondent also indicated that it accepted that a pecuniary penalty should be ordered and paid pursuant to cl 4 of Pt 1 of Sch 2 of the OHS Act in respect of the breach of s 16(1) of the OHS Act; and that it should pay the applicant’s costs of the proceedings to be taxed if not otherwise agreed.AGREED FACTS The parties prepared a statement of agreed facts for the purpose of the hearing on penalty, which were received as Exh 1 in the proceeding and which, subject to some minimal editing for style by the Court for the purposes of these reasons, states as follows: Standing: The applicant is and was, at all material times:(a)a body established pursuant to s 68 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act); and (b)authorised to apply for relief pursuant to s 77 and cl 5(1) of Pt 1 of Sch 2 of the OHS Act. The respondent is and was, at all material times:(a)a company duly registered in accordance with the requirements of the Corporations Act 2001 (Cth) and capable of suing and being sued;(b)the holder of a licence in the Comcare scheme, granted pursuant to Pt VIII of the SRC Act;(c)"non-Commonwealth licensee", within the meaning of s 5 of the OHS Act;(d)the employer of employees engaged to perform work at the Alcoa Alumina Refinery owned and operated by Alcoa of Australia Limited (Alcoa) at Wagerup, Western Australia (Wagerup Refinery);(e)under a statutory duty, pursuant to s 16(1) of the OHS Act, to take all reasonably practicable steps to protect the health and safety, at work, of its employees; and(f)pursuant to s 82(1) of the OHS Act, subject to the OHS Regs. Contract between Alcoa and Transpacific Industrial Solutions Pty Ltd: In 2009, Transpacific Industrial Solutions Pty Ltd (TIS), a related entity of the respondent, was under contract to Alcoa to perform services at the Wagerup Refinery, which services included the high pressure water cleaning of mineral processing vessels known as "Flash Tanks". TIS retained the respondent to perform the services under its contract with Alcoa. The high pressure water cleaning of the Flash Tanks at the Wagerup Refinery primarily involved the high pressure water blasting of "scale" from the interior of the Flash Tanks. “Scale” is a rock like substance which is deposited on the interior of the Flash Tanks, after it has leached out of the ore which is processed in the Flash Tanks. Flash Tank 21: One of the Flash Tanks which TIS was required to clean in 2009 was Flash Tank 21. The tank was an enclosed vertical mineral processing vessel which stood approximately 35 m high and comprised two principal chambers: an upper chamber (upper chamber) and a middle chamber (middle chamber). The upper chamber was located at the top of the tank. It had a moderately domed roof and a solid metal floor. Access to the upper chamber could be gained only through a 750 mm diameter manhole on the eastern side of the chamber. Once a person was inside the upper chamber, the space above the floor in the upper chamber allowed that person to stand erect. The solid floor of the upper chamber prevented any access to the middle chamber below.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Other agreed facts: In the course of oral submissions the parties also indicated to the Court that it was agreed, as a matter of fact, that:·There were scuff marks near a manhole to the middle chamber.·Mr Fry had entered the middle chamber for a reason associated with his work on the day in question and not for some unrelated purpose.·A spanner was found near Mr Fry’s body.CONSIDERATION OF PENALTY General Principles: The parties are in agreement that in assessing penalty for the purpose of the contravention acknowledged by the respondent, guidance may be drawn from the approach taken by Madgwick J in Comcare v Commonwealth of Australia [2007] FCA 662; (2007) 163 FCR 207 (the “Trooper Lawrence” case) bearing in mind the cautions expressed by North J in Comcare v Commonwealth of Australia [2009] FCA 700; (2009) 184 IR 441 (the “Cadet Francis” case) and Flick J in Comcare v Post Logistics Australasia Pty Ltd [2008] FCA 1987; (2008) 178 IR 200 (Post Logistics 2008). I reaffirm the cautionary statements made by North J and Flick J in relation to the principles identified by Madgwick J in Trooper Lawrence as relevant to the consideration of penalty. In exercising the power, guidance may be drawn from how the power to impose penalties for breaches of statutory provisions is exercised under a range of statutes, as explained in the Trooper Lawrence case. However, primarily, in a case such as the present, it is from and against the terms of the OHS Act that all the relevant penalty principles must, in the end, be drawn. As explained in the Trooper Lawrence case, the Cadet Francis case and other recent decisions of the Court following them, the seriousness of the contravention is central to the penalty assessment process. Another way of expressing that consideration is the nature and extent of a contravening conduct. Aspects of the seriousness consideration the Court must undertake include:(1)the extent to which the risk of injury in a given situation was foreseeable, even if the precise cause or circumstances of exposure to the risk were not;(2)if in any case the risk of injury was actually foreseen, but no adequate response was taken to obviate it; (3)the risk of injury that may be foreseen in respect of not only serious personal harm, but also death. While the gravity of a consequence of a particular accident will not usually itself dictate the level of seriousness of a contravention or the amount of the penalty, the fact that failure to comply with the OHS Act may lead to death, and a fatality has occurred will usually be relevant to assessing the seriousness of a contravention;(4)the systemic failure of an employer to do something about a foreseeable risk contrasted with the risk of injury which results from inadvertence or a momentary lapse of supervision;(5)the size of the contravener’s organisation and its capacity to have in place systems that would have obviated or minimised the risks of injury. On the other hand, it does not necessarily follow that because an organisation is not large that it owes some lesser responsibility;(6)the processes, protocols or systems that an employer has adopted in order to educate its employees, to ensure that its safety systems are effective and to discipline employees when systems are breached; and(7)the reaction of an employer to any incident as well as any penalty proceedings brought against them, which is connected to the proceeding factor discussed above. The cooperation and, in some cases, the early admission of responsibility for a contravention may be relevant.