Case: Director of Public Prosecutions v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557 ; [2005] VSCA 219
Outcome: discussed
also relied on the following passage from Workcover Authority of New South Wales v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at 714 (quoting with approval from Lawrenson Diecasting Pty Ltd v Workcover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464): [T]he primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence. Particularly in cases involving a serious breach of the OH &amp; S Act, subjective factors, such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety, must play a subsidiary role in determination of penalty to the gravity of the offence itself. See also Director of Public Prosecutions v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557 ; [2005] VSCA 219 ( Amcor ) at [35] where this passage was cited. Then Mr Livermore referred to two Victorian Court of Appeal cases in addition to reference to the guidance provided by Madgwick J in Trooper Lawrence [2007] FCA 662 ; 163 FCR 207. These references were designed to throw some light on the analysis of the facts in the present case. However, the width of the factual enquiry in each particular case makes comparison with the facts of other cases of rather limited assistance. Each case must be assessed on its own facts. With that reservation in mind, I deal first with Director of Public Prosecutions v Yarra Valley Water Limited (2006) 159 IR 395 ; [2006] VSCA 279. In that case an employee was killed when the endplate blew off a stretch of pipe and struck him. The pipe was being pressure tested by a contractor. The contract required the testing to be done with water which was the recognised method. Instead, the test was conducted with air, thereby causing the accident. Nettle JA said at [3], [4] and [6]: 3. First, this case results from a tragedy. The victim of the offence lost his life in the course of his work through no fault of his own. That could have been avoided if the respondents had known more about the techniques employed in their operations. It is because of their failure to know and to take appropriate action that they fall to be punished. Secondly, this case is a long way from Amcor , to which King, A.J.A. refers in her reasons; for there was here no attempt to cut corners for the sake of supposed economies or any calculated disregard of the safety of men. To the contrary, and despite the fact of the offending, the evidence bespeaks two organisations committed to the safety of their workforce and whose modus operandi was to do and pay for what they understood to be necessary to achieve it. The tragedy here came about because of a lack of knowledge and ultimately human error. ... 6. No one denies that the nature and gravity of these offences was serious and therefore that they warranted substantial penalties. General deterrence is the pre-eminent sentencing consideration in matters of this kind and therefore any contravention of s 21 of the Occupation Health and Safety Act 1985 which results in death or serious injury is liable to be visited with heavy penalties. But for the reasons essayed by King, A.J.A. in her judgment, the level of culpability in this case was not high and it is apparent from the improvements made to the respondents' systems since the offences were committed that there is no need for specific deterrence. It should also be understood that both respondents were without any prior convictions and according to the evidence each had a well deserved reputation for safety in the workplace. [original emphasis, footnotes omitted] In Amcor 11 VR 557, a worker was killed when drawn into an unguarded machine used in a paper manufacturing operation. There had been a number of injuries suffered by workers in the past and reports highlighting the potential danger of the machine. The risk of injury was obvious. The Court of Appeal allowed the appeal against sentence and imposed a penalty of $180,000 for each of two counts of the Victorian statutory provision equivalent to s 16(1) of the Act. Consideration Neither of the parties disputes that the death of Nathan involved a serious contravention of the Act. There are several features which identify the contravention as particularly serious. Nathan was 13 years old. It was his first cadet camp. He was possibly the youngest boy on the camp. The breach of duty in this case involved the failure to take care of a child. The respondent had a special responsibility given Nathan's youth to ensure that his safety was protected. Further, the danger of harm to people suffering food allergy was made known to the ADF by the 1996 Australian National Audit Office report. And, in the year prior to the camp there was renewed attention to the dangers of food allergy in schools. The State government working party on which the Association of Independent Schools of Victoria was represented had formulated its guidelines by the end of 2006. I infer from the change in the Scotch College medical form for use in the 2007 enrolment that the school was aware of the peril of anaphylaxis to people suffering food allergy. And I infer from the establishment of the working party and distribution of the Guidelines that food allergy in schools was a matter of general community concern at the time of Nathan's death. Then, the Scotch College Cadet Unit notified parents that cadets were not expected to provide their own food. The Unit required medical information and Nathan's parents provided that information. Despite this, the Commonwealth supplied ration packs with food containing peanut and failed to take the simple precaution of having the medical details available when the ration packs were distributed. That would have allowed those supervising the distribution to ensure that boys suffering food allergy did not receive ration packs containing peanut.