Comcare v Commonwealth of Australia

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 04 May 2007
• Neutral Citation: [2007] FCA 662
• Date: 04 May 2007

FEDERAL COURT OF AUSTRALIA

Comcare v Commonwealth of Australia [2007] FCA 662

INDUSTRIAL LAW – Industrial safety, health and welfare – The Commonwealth – Penalties for breach of Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth) – appropriateconsiderations – inadequacy of available sanctions as against Commonwealth

Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth), s 16(1), Sch 2, cll 2 and 4

Coochey v Commonwealth (2005) 149 FCR 312, cited

COMCARE v COMMONWEALTH OF AUSTRALIA

ACD 38 OF 2005

MADGWICK J

4 MAY 2007

SYDNEY (HEARD AT CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 38 OF 2005

BETWEEN:	COMCARE Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	MADGWICK J
DATE OF ORDER:	4 MAY 2007
WHERE MADE:	SYDNEY (HEARD AT CANBERRA)

THE COURT DECLARES THAT:

1. Between on or about 4 November 2004 and on or about 12 November 2004 at the Mount Bundey Training Area in the Northern Territory the respondent, acting through the Chief of the Defence Force as the employing authority in relation to members of the Australian Defence Force, contravened cl 2(1) of Sch 2 of the Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth) by reason of its havingbreached s 16(1) of the said Act in that in the course of conducting the Subject 1 Corporals Course it:

(a) failed to conduct the field phase of the Corporals Course during the wet season at a training area outside of the Northern Territory;

and then having decided not to conduct the course outside of the Northern Territory:

(b) failed to promulgate its own policies and procedures contained in the Defence Safety Manual (SAFETYMAN) and train relevant personnel about those procedures.

(c) failed to provide a structured system of acclimatisation prior to the field phase of the Corporals Course.

(d) did not effectively monitor the heat conditions and suspend the field phase of the course in accordance with the policies and procedures contained in SAFETYMAN according to the Wet Bulb Globe Thermometer readings or when participants began to experience symptoms of heat injury.

(e) failed to introduce rest/work cycles as required by SAFETYMAN.

(f) failed to provide rest periods in shaded areas as required by SAFETYMAN.

(g) failed to provide an Advanced Medical Assistant to monitor participants for signs of heat injury , treat them and supervise more junior Medical Assistants.

(h) failed to provide a fully qualified medical officer and resuscitation team where training was undertaken in extreme conditions.

(i) failed to provide an ambulance with working air conditioning.

2. The Commonwealth entity to which the conduct related is the Department of Defence.

THE COURT ORDERS THAT:

1. Pursuant to cl 4 of Sch 2 of the said Act the respondent pay a penalty of 1,800 penalty units.

2. The respondent is to pay the applicant’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 38 OF 2005

BETWEEN:	COMCARE Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	MADGWICK J
DATE:	4 MAY 2007
PLACE:	SYDNEY (HEARD AT CANBERRA)

REASONS FOR JUDGMENT

His Honour:

1 This case concerns what level of financial “penalty”, up to a relatively low limit, it is appropriate for the Court to impose on the Commonwealth for admitted breaches of the Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth) (“OHS Act”) by the Commonwealth as the deemed employer of a soldier, Trooper Lawrence, who died at the age of 25 in November 1994 in the Northern Territory as a result of heat stress sustained while on an Army promotional training course.

Background

2 Between 4 and 10 November 2004, members of the Australian Defence Force (“ADF”), including Trooper Lawrence, participating in the field phase of a leaders training course known as the Subject 1 for Corporal Course (“Corporal Course”), being conducted at the Mount Bundey Training Area (“Mount Bundey”) in the Northern Territory, experienced environmental circumstances giving rise to a risk of heat injury, including heat stroke.

3 By virtue of s 9(2)(b) of the OHS Act, a member of the ADF is, for the purposes of the OHS Act, taken to be employed by the Commonwealth. Regulation 4 of the Occupational Health and Safety (Commonwealth Employment) Regulations 1991 makes the Chief of the Defence Force the employing authority in relation to a member of the Defence Force for the purposes of the Act (see, in particular, s 10). At all material times, therefore, the respondent is taken to have been the employer of members of the ADF for the purposes of the OHS Act.

4 The applicant seeks a declaration of contravention and the imposition of a pecuniary penalty pursuant to the provisions of Sch 2 of the OHS Act.

5 Subsections 11(1) and (3) provide that the OHS Act binds the Crown in right of the Commonwealth and that the Commonwealth is subject to proceedings for a contravention of cl 2(1) of Sch 2 and liable to pay a pecuniary penalty under cl 4(l) of that Schedule. Clause 2(1) of Sch 2 provides:

(1) If a court considers that a person has breached one of the following provisions, or was involved in such a breach, it must make a declaration that the person has contravened this subclause:

(a) subsection 16(1) (duties of employers in relation to their employees etc.)

6 The applicant alleges that the Commonwealth has breached its obligations under s 16(1) of the OHS Act which provides that: “An employer must take all reasonably practicable steps to protect the health and safety at work of the employer’s employees.”

7 The respondent concedes that the circumstances leading up to the death of Trooper Lawrence involved contravention by it of its duty under s 16(1) of the OHS Act.

The ADF’s Regional Training Centre in the Northern Territory

8 In 1992 the ADF directed the Army to locate a Brigade in the Darwin area. This resulted in approximately 1,200 Army personnel moving there. Mount Bundey was set up to provide training facilities to serve this Brigade.

9 Use of Mount Bundey is managed by the Defence Corporate Support and Information Group, while Training Command - Army provides training services to “client” units of other commands. Training is undertaken by arrangement with client units according to an Army-wide program by instructors from the Regular Army and Army Reserve.

10 Mount Bundey lies within the coastal monsoon region of Northern Australia. Its climate therefore has two distinct seasons: a dry season from about May to October; and a wet season from about November to April. November is generally regarded as still being in the “build up” to the wet season and, until the rains come, a more trying time than the wet season proper. The average temperatures at Jabiru Airport, the nearest observation point to Mount Bundey, are 18 to 32ºC in the dry season and 24 to 36ºC in the wet season. There is at Mount Bundey a sparse canopy of low eucalypts, giving very little natural shade.

11 November 2004 had the second hottest average maximum temperature in Darwin for November on record and was the fourth hottest month since records were first taken in the area in 1931.

The nature of heat injury and heat stroke

12 Heat exhaustion and heat stroke are forms of heat injury. Heat exhaustion occurs when the body diverts blood away from the internal organs to the skin leading to an increased heart rate and lowered blood pressure. It is treatable by cooling, resting and elevating the legs of the patient. Its effects are short term.

13 Heat stroke is, by contrast, a life threatening medical emergency that occurs when the body of an individual loses the ability to control core temperatures. It is difficult to predict an individual’s susceptibility to heat stroke which varies according to personal and environmental factors and can occur very suddenly. A person who is struck down with heat stroke may or may not show signs of heat injury before symptoms appear. A person suffering heat stroke must receive immediate treatment with appropriate cooling. Core body temperature should be lowered as rapidly as possible. The chances of recovery are directly related to the speed of cooling.

ADF policies on heat illness and heat injury – “SAFETYMAN”

14 ADF members have for many decades served in hot climates.

15 Between September 1999 and 7 April 2005, 141 Army personnel, that is to say about 25 per year, were hospitalised for heat injury. (Hospitalisation implies serious illness.) The incidence of heat illness not requiring hospitalisation is not known because, prior to the death of Trooper Lawrence, there was no internal audit system to monitor the incidence of heat injury.

16 An official Army safety manual known, with the military partiality to acronyms, as SAFETYMAN had been the primary source for strategic safety policy in the ADF since at least March 2002. An ADF Preventative Medicine Manual (“ADFP 717”) also contained instructions and guidance on the prevention and control of health problems associated with exposure to heat, cold and high altitude. Some areas of SAFETYMAN and ADFP 717 conflicted, particularly in relation to continuous work/rest cycles and fluid replacement, although the thrust of the provisions was generally the same.

17 As at November 2004, SAFETYMAN provided inter alia:

Training exercises and administrative activities during peacetime are notessential situations. Exceeding the guidelines for a training situation will unnecessarily risk the lives of personnel.

1.4 The aim of this chapter is to provide Commanders with the information necessary to protect personnel from becoming unnecessary heat casualties.

RESPONSIBILITIES

Commanders

1.5 Prevention of heat illness is a Command responsibility. Unit...