Comcare v Post Logistics Australasia Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 24 December 2008
• Neutral Citation: [2008] FCA 1987
• Date: 24 December 2008

FEDERAL COURT OF AUSTRALIA

Comcare v Post Logistics Australasia Pty Ltd [2008] FCA 1987

OCCUPATIONAL HEALTH AND SAFETY – civil penalty – failure to take reasonable steps to protect health and safety – death of worker – statement of agreed facts – declaration as to contravention – imposition of pecuniary penalty – principles to be applied

Federal Court of Australia Act 1976 (Cth), s 21

Occupational Health and Safety Act 1991 (Cth), s 16(1), sch 2 pt 1

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 applied

Australian Competition and Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834, ATPR 42-199 followed

Australian Competition and Consumer Commission v EDirect Pty Ltd [2008] FCA 65, ATPR 42–216 cited

Australian Competition and Consumer Commission v Goldy Motors Pty Ltd [2000] FCA 1885, ATPR 41–801 cited

Australian Competition & Consumer Commission v Info4PC.com Pty Ltd [2006] FCA 1534 cited

Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18, 161 ALR 79 followed

Australian Prudential Regulation Authority v Derstepanian [2005] FCA 1121 cited

Bank of Kuwait and the Middle East v Ship MV ‘Mawashi Al Gasseem’ (No 2) [2007] FCA 815, 240 ALR 120 cited

Comcare v Commonwealth [2007] FCA 662, 163 FCR 207 followed

Comcare v National Gallery of Australia [2007] FCA 1548, 98 ALD 67 followed

Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317, 136 LGERA 89 cited

Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 cited

Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70, 168 FCR 383 applied

Secretary, Department of Health & Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 cited

Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 considered

Veen v The Queen (No 2) (1988) 164 CLR 465 applied

COMCARE v POST LOGISTICS AUSTRALASIA PTY LIMITED (ACN 002 579 115)

NSD 753 of 2008

FLICK J

24 DECEMBER 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY	NSD 753 of 2008

BETWEEN:	COMCARE Applicant
AND:	POST LOGISTICS AUSTRALASIA PTY LIMITED (ACN 002 579 115) Respondent

JUDGE:	FLICK J
DATE OF ORDER:	24 DECEMBER 2008
WHERE MADE:	SYDNEY

THE COURT DECLARES THAT:

1. In or about March 2006 and on 25 May 2006 Post Logistics Australasia Pty Ltd contravened clause 2(1) of Schedule 2 of the Occupational Health and Safety Act 1991 (Cth) by reason of its having breached section 16(1) of the said Act in that:

(a) The duties of Post Logistics Australasia Pty Ltd under subsection 16(1) apply not only in relation to its employees, but also, to the extent provided for in subsection 16(4), in relation to its contractors, as defined in section 9A.

(b) In or about March 2006 its contractor Mr John Lapidario approached a moving forklift operated by its employee Mr Van Trot Tran and disconnected the power on that forklift.

(c) On another occasion in or about March 2006 Mr Lapidario, without any qualifications or training to do so, operated a moving forklift in warehouse 1 in the vicinity of Mr Tran.

(d) On another occasion in or about March 2006 Mr Lapidario approached an operating forklift operated at the time by Mr Tran and applied the handbrake.

(e) At approximately 2.45 pm on 25 May 2006 Mr Tran was operating a forklift from the driver’s seat in the vicinity of the work benches and immediately to the south of the southern-most rack of shelving at the Site. In an attempt to engage in horseplay with Mr Tran, Mr Lapidario climbed onto the forklift putting his right hand on Mr Tran’s head and neck, and his left hand under Mr Tran’s leg. The forklift travelled in reverse and Mr Lapidario was accidentally crushed between a pole and the forklift. Mr Lapidario died at the scene of the accident.

2. In this regard Post Logistics Australasia Pty Ltd 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 Mr Tran and its contractor Mr Lapidario in that it:

(a) failed to provide adequate supervision or instruction to Mr Lapidario so as to ensure that he 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 Mr Lapidario coming into contact with a moving forklift.

3. The Commonwealth entity to which the conduct related is Post Logistics Australasia Pty Ltd.

THE COURT ORDERS THAT:

1. Pursuant to clause 4 of Schedule 2 of the said Act, Post Logistics pay the Commonwealth a penalty of $165,000.

2. The Respondent is to pay Comcare’s costs as agreed, or in the absence of agreement, as taxed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY	NSD 753 of 2008

BETWEEN:	COMCARE Applicant
AND:	POST LOGISTICS AUSTRALASIA PTY LIMITED (ACN 002 579 115) Respondent

JUDGE:	FLICK J
DATE:	24 DECEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 Mr John Lapidario was a young Phillipino man. He emigrated to Australia when he was 16 years old. Some four years later he was dead. He died on 25 May 2006.

2 Mr Lapidario was killed as a result of an accident that occurred on that day at a warehouse controlled by the Respondent at Wetherill Park, New South Wales. From 16 August 2004 until his death, he had been employed by a labour hire agency, Landmark Industrial Recruitment Pty Ltd (“Landmark”) and worked in the Respondent’s warehouse as a picker and packer.

3 At about 2.45 pm on 25 May 2006 a forklift was being driven at the warehouse by a certified forklift driver, Mr Tran. Mr Lapidario engaged in some “horseplay”. He climbed onto the forklift and placed his hand on the driver’s head and neck and his other hand under the driver’s leg. The reverse pedal was accidentally engaged and the forklift reversed. Mr Lapidario was crushed between the forklift and a pole. He could not be resuscitated and died at the scene.

4 His was not the first accident or death at the warehouse. In November 2002 an employee had been injured in a forklift collision. The Respondent was convicted under s 8(2) of the Occupational Health and Safety Act 2000 (NSW). In July 2003 an employee was killed. The Respondent was there convicted under s 8(1) of the New South Wales Act.

5 A report into the death of Mr Lapidario was undertaken by an Investigator appointed under s 40(2)(a) of the Occupational Health and Safety Act 1991 (Cth).

6 These tragic facts are the occasion of the present Application.

The Application

7 In its Application, Comcare seeks a declaration that Post Logistics Australasia Pty Limited (“Post Logistics”) has contravened subclause 2(1) of Schedule 2, Part 1 of the Occupational Health and Safety Act in respect of a breach of s 16(1) of the Act. Comcare also seeks an order for the payment of a pecuniary penalty.

8 Schedule 2 of the 1991 Act makes it mandatory for this Court to make a declaration where it considers that s 16 has been breached, but confers a discretion as to the imposition of a pecuniary penalty.

9 In proceedings seeking a declaration and a pecuniary penalty, the Court is to apply the rules of evidence and procedure for civil matters: sch 2, cl 8.

10 There is agreement between the parties that it is appropriate for the making of the declaration as sought and further agreement as to the imposition of a penalty in the sum of $165,000.

11 Section 16(1) provides as follows:

Duties of employers in relation to their employees etc.

(1) An employer must take all reasonably practicable steps to protect the health and safety at work of the employer’s employees.

Section 16(4) is also of relevance. That sub-section provides as follows:

(4) The obligations of an employer in respect of the employer’s employees that are set out in subsections (1) and (2) apply also in respect of persons who are contractors of that employer but only in relation to:

(a) matters over which the employer has control; or

(b) matters over which the employer would have had control but for an express provision in an agreement made by the employer with such a contractor to the contrary, being matters over which the employer would, in the circumstances, usually be expected to have had control.

A “contractor” is further relevantly defined by s 9A as follows:

Contractor

(1) A contractor is:

(a) a Commonwealth contractor (see subsection (2)); or

(b) a Commonwealth authority contractor (see subsection (3)); or

(c) a non Commonwealth licensee contractor (see subsection (4)).

Commonwealth contractor

(2) A Commonwealth contractor is a natural person (other than a Commonwealth employee or a Commonwealth authority employee) who performs work on Commonwealth premises in connection with a contract between:

(a) the Commonwealth; and

(b) that person or another person (whether a natural person or not);

which is in connection with an undertaking being carried on by the Commonwealth.

Schedule 2 relevantly provides as follows:

1 Courts that may exercise jurisdiction under this Part

The only courts that may exercise jurisdiction under this Part are the Federal Court of Australia and the Supreme Court of each State or Territory.

2 Declarations of contravention

(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.)…

…

And cl 4 of sch 2 provides as follows:

4 Pecuniary...