Case: Comcare v Commonwealth (2007) 163 FCR 207 ; [2007] FCA 662 ( Trooper Lawrence )
Outcome: applied
Comcare v Commonwealth (2007) 163 FCR 207 ; [2007] FCA 662 ( Trooper Lawrence ) Madgwick J said at [116] [123]: 116. The overriding principle in assessing penalty is that the amount of the penalty should reflect the Court's view of the seriousness of the offending conduct in all , the relevant circumstances: Coochey v Commonwealth [2005] FCA 1165 ; (2005) 149 FCR 312 and the cases there cited. 117. The relevant circumstances will vary from case to case and by reference to the objects of the particular legislation which has been contravened. 118. Pursuant to s 3 of the OHS Act the objects of the Act include: (a) to secure the health, safety and welfare at work of employees of the Commonwealth and of Commonwealth authorities; and ... (d) to promote an occupational environment for such employees at work that is adapted to their needs relating to health and safety; ... (f) to encourage and assist employers, employees and other persons to whom obligations are imposed under the Act to observe those obligations; and (g) to provide for effective remedies if obligations are not met, through the use of civil remedies and, in serious cases, criminal sanctions. 119. The applicant contends that guidance may be had from decisions relating to penalty under State occupational health and safety laws which import like obligations on employers. 120. Decisions under the cognate New South Wales Act refer to the following considerations among others: (i) the penalty must be such as to compel attention to occupational health and safety generally, to ensure that workers whilst at work will not be exposed to risks to their health and safety; (ii) it is a significant aggravating factor that the risk of injury was foreseeable even if the precise cause or circumstances of exposure to the risk were not foreseeable; (iii) the offence may be further aggravated if the risk of injury is not only foreseeable but actually foreseen and an adequate response to that risk is not taken by the employer; (iv) the gravity of the consequences of an accident does not of itself dictate the seriousness of the offence or the amount of penalty. However the occurrence of death or serious injury may manifest the degree of the seriousness of the relevant detriment to safety; (v) a systemic failure by an employer to appropriately address a known or foreseeable risk is likely to be viewed more seriously than a risk to which an employee was exposed because of a combination of inadvertence on the part of an employee and a momentary lapse of supervision; (vi) general deterrence and specific deterrence are particularly relevant factors in light of the objects and terms of the Act; (vii) employers are required to take all practicable precautions to ensure safety in the workplace. This implies constant vigilance. Employers must adopt an approach to safety which is proactive and not merely reactive. In view of the scope of those obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the employer in the future. This is particularly so where the employer conducts a large enterprise which involves inherent risks to safety; (viii) regard should be had to the levels of maximum penalty set by the legislature as indicative of the seriousness of the breach under consideration; (ix) the neglect of simple, well-known precautions to deal with an evident and great risk of injury, take a matter towards the worst case category; (x) the objective seriousness of the offence, without more may call for the imposition of a very substantial penalty to vindicate the social and industrial policies of the legislation and its regime of penalties. The applicant contends that the above approach is particularly relevant in the context of the subject OHS Act. The evident purpose of making the Commonwealth liable to a penalty for a breach of s 16(1) of the OHS Act is to mark the seriousness of the conduct and act as a deterrent to the Commonwealth, Commonwealth agencies and other persons who may be subject to the OHS Act. 122. The respondent submitted: Care must be taken in the use of criminal cases arising under occupational health and safety legislation in the various State jurisdictions. Unlike subsection 16(1) of the OHS Act, the New South Wales equivalent imposes an absolute obligation on an employer to secure the health and safety of its employees, a circumstance that has guided the New South Wales courts in their approach to penalties in criminal proceedings under the NSW legislation. Subsection 11(2) of the OHS Act very deliberately excludes the Commonwealth and Commonwealth authorities (other than Government business enterprises) from liability for prosecution for an offence under the Act. The reasons for this exclusion must go beyond simply easing the procedural and evidentiary burdens faced by Comcare and its investigators in making the Commonwealth accountable for occupational health and safety breaches. As Giles JA observed in Adler v ASIC [2003] NSWCA 131 ; (2003) 46 ACSR 504 , [658]: "Civil penalties can be regarded as punitive, with a resemblance to fines imposed on criminal offenders, but the resemblance is not identity". I nevertheless consider that, despite the differences between the New South Wales and the Commonwealth legislation, and bearing in mind that these are civil and not criminal proceedings, the considerations enumerated above, mainly enunciated in decisions of the New South Wales Industrial Commission, provide useful, analogical, general guidance as to the approach to be taken in consideration of penalties under the Commonwealth Act. Both parties accepted that these remarks provided useful guidance in assessing the amount of a pecuniary penalty in the present case. Comcare accepted that the Commonwealth did not consciously or deliberately disregard the safety of cadets. There was no conscious decision to flout the law. Mr Rozen said that in Trooper Lawrence 163 FCR 2007 Madgwick J held that, absent such features, a case could not fall within the worst category. Mr Rozen, however, contested this view and argued that the absence of such features did not remove the case from the worst category. In Trooper Lawrence 163 FCR 2007 Madgwick J said at [125]: I cannot impose the maximum penalty for the reason suggested by Mr Maurice QC for the respondent, namely that there was no conscious decision to flout the law, this is not quite in the worst class of case. The seriousness of the breaches of the law mean, however, that the case is close to being in the worst class. There were systemic failures of the most serious kinds. His Honour was referring to the circumstances of the particular case before him. I doubt that he was seeking to lay down a general principle concerning the operation of the section. Such a reading would not sit comfortably with the approach of his Honour expressed in [116] [117]. There His Honour emphasised that the overriding principle in assessing penalty is that the amount should reflect the Court's view of the seriousness of the offending conduct in all the circumstances. It is possible to imagine cases of the extreme end of seriousness, perhaps involving multiple fatalities, where the maximum penalty would be ordered even though there was no deliberate flouting of the law. 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]