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)

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.

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 Commanders are responsible for the activities of their Units and are required by the OH&S Act and SAFETYMAN... to amongst other things, take all reasonably practical steps to protect the health and safety of personnel under their control.  Decisions in this regard should be based on the content in Annexures A and B.  Annex A contains details of heat stress values...  Annex B contains details on preventative strategies which may also be of assistance in the decision making process.  The most effective preventive measures available to Unit Commanders are to:

…

b.          limit physical activity as the operational situation permits and by the degree of acclimatisation of Unit personnel,

c.          educate personnel in the recognition of heat illness and the prevention of heat injuries,

…

1.6        Commanders must ensure that the requirements of Table IA-1 in Annex A are not exceeded unless operational considerations are paramount.  If the guidelines in this policy are exceeded for operational reasons, Commanders should anticipate heat casualties in direct proportion to increases in heat stress and the level of physical activity.

18                  A Wet Bulb Globe Temperature (“WBGT”) index was the Department of Defence’s preferred heat stress measurement because it could be used in a full range of heat stress environments.  A WBGT instrument measures 3 parameters: the temperature as reduced by natural evaporation of water/sweat, radiant heat load and the actual air temperature.  The readings are a combination, in differing ratios, of these measurements.  The resultant temperature index is closely related to the amount of heat stress.

19                  Annex A to Chapter 1 of SAFETYMAN described the WBGT Index and then stated:

Heat stress levels

The following guidelines should be observed to reduce the incidents of heat stress:

…

d.         When the WBGT Index is between 28-32 even fully acclimatised personnel should restrict physical activity to no more than a total of 6 hours per day at the recommended work/rest cycle (see Table IA-1 in this Chapter).

…

e.                 At a WBGT Index at 32 and above Commanders should, if possible, suspend all strenuous physical activity for all personnel.

20                  The Table contained in lA-1 was as follows:

21                  At the relevant time SAFETYMAN also contained the following provisions:  

Failure to follow the appropriate preventative measures during ground and maritime operations may result in large numbers of heat casualties and a unit’s inability to fight or operate effectively.

…

Health services personnel are responsible for advising Commanders on water consumption requirements and physical activity levels.  Wet Bulb Globe Temperature Index of heat stress readings are to be taken as a measure of the heat stress and recommendations made based on the measured heat stress index.

…

A period of two weeks with progressively increasing exposure to heat and physical activity is required for substantial acclimatisation.  Service members who are required to do heavy work before being acclimatised have a high potential for heat injury.

…

Thirst is not an adequate indicator of body water requirement.  Commanders must require water intake at the recommended rates for the heat stress level of their particular location.

(Emphasis added.)

Work/Rest Tables and SAFETYMAN

22                  Prior to 23 September 2005 the work/rest tables in SAFETYMAN would have permitted little training which required arduous physical work to occur in the Northern Territory in summer.  (Training courses, such as the Sergeants Course were and are still conducted in the Northern Territory during the summer.  That course does not have a field phase as a component part.)

23                  Thus, as SAFETYMAN stood at November 2004, it provided that physical work should stop at a WGBT reading of 32˚ and it made plain that conditions at WGBT of 32˚ or above are extreme.

24                  SAFETYMAN provided at that time that a commander could exceed the work/rest tables if operational requirements were paramount.  However, it also provided that training exercises in peace time were not essential situations. 

25                  There was no operational guidance or management regime for the continuation of physical exertion if WGBT 32˚ were exceeded.

26                  Conditions at Mount Bundey during the wet season generally exceeded WGBT 32˚.  Accordingly, courses with physical requirements equivalent to the Corporal Course could only be conducted if the Commanding Officer decided to continue outside of the guidelines in SAFETYMAN.

The Corporal Course

27                  The Corporal Course was designed to train and assess soldiers in the skills required to perform as a junior leader in the Army.  Corporals are the first level of command within the Army.  They normally command between 8-10 soldiers.  They may also have responsibility for equipment such as a tank or armoured personnel carrier.  Corporals command the smallest group of soldiers that the Army deploys on operations and are responsible, at the lowest level, for the implementation of operational plans.  There is a considerable increase in responsibility in the promotion from private to corporal.

28                  Prior to acceptance into the Corporal Course candidates were required to pass a “Barrier Assessment”, covering all aspects laid down in the pre-course preparation requirements.  Participants were recommended by their superior officers for possible promotion.

Introduction of four Corporal Courses each year at Mount Bundey

29                  In 1996 or 1997, Brigadier Bornholdt, then the Chief Instructor of Warrant and Non-Commissioned Officers for the Army, undertook an assessment as to whether Corporal Courses should be conducted at Mount Bundey during the wet season.  He concluded that such courses should not be so conducted as it would be “folly” to do so.

30                  Prior to 2003, the ADF ran three Corporal Courses each year through the Regional Training Centre (“RTCNT”) at Mount Bundey.  However, before October 2003 the field phases of such courses were not conducted at Mount Bundey during the wet season.

31                  For reasons that are not clear and that apparently involved no similarly well-qualified reassessment to that of 1996/7 of the probable effects of climatic conditions, a decision was taken in 2001 that courses might be undertaken in the wet season.  Commencing in October 2003, and again in April 2004 and in November 2004 the field phase of the Corporal Course was conducted at Mount Bundey during the wet season because RTCNT were asked to conduct four courses.  During the field phase of the first such Course held in the wet season in October/November 2003 there were 29 reported cases of heat injury.  During the field phase of the second Course held during the wet season in April 2004 there were 36 reported cases of heat injury.  Four of these cases were Priority 2 events, which meant that “life or limb [was] in serious jeopardy”.

32                  In May 2004 the Commander of the Army’s Regional Training Centres, Brigadier Anstey, directed the Senior Instructor of the Corporal Course at RTCNT, Warrant Officer Lucas, to provide a brief on options to reduce the high number of heat illness cases for the field phase of the Corporal Course.

33                  The brief prepared by Warrant Officer Lucas examined the climatic conditions at Mount Bundey and provided statistical evidence that the determining factor for the high incidence of heat related injury was operating in the wet season, rather than the level of activities laid down by the Training Management Package. The brief pointed out:

·                    the provisions of SAFETYMAN relating to the cessation of work at a WGBT of 32°;

·                    that the only WGBT readings which had been taken during the wet season in April 2004 exceeded 32°;

·                    the extent of heat illness in Corporal Courses held during the wet season; and

·                    concerns about a lack of acclimatisation among Corporal Course participants.

34                  The brief also set out four options to reduce the high incidence of heat illness cases during the wet season. The options provided were:

1.         Conduct low level operation in a Scale A environment.  (Scale A was a part of Mt Bundey, a sort of local headquarters.  Scale A facilities included: an air-conditioned demountable building for use as a Regimental Aid Post; areas for the erection of 20 x 30 tents; 2 fly screened mess huts; two buildings housing toilet, shower and laundry facilities; a kitchen with cool rooms and a freezer; an Aero Medical Evacuation helicopter landing site, telephone lines and power, water and sewage services. 

2.         First and last Corporal Courses be conducted south in better climatic conditions that facilitate learning outcomes in the field.

3.         A purpose made Company Defensive position be constructed as a permanent facility at Mount Bundey.

4.         RTCNT to conduct one Subject 1 for Sergeant Course and three Corporal Courses each calendar year. This was Warrant Officer Lucas’ preferred option: it aimed to avoid having any course held at Mount Bundey in the wet season.

35                  The brief indicated that modifications to the Corporal Course had already been implemented:

·                    a reduced activity period was introduced between 10:00 am and 3:00 pm;

·                    showers were to be provided at Scale A (I interpolate that, nevertheless, showers were not available on the field phase of the Corporal Course prior to Trooper Lawrence’s death.)

·                    patrol lengths were reduced to the minimum allowable by the course requirements;

·                    a medic was to be positioned on the “defensive position”, an area where active operations were simulated, to monitor possible heat problems;

·                    all patrol routes were to be within 20 minutes of the road to allow evacuation in a minimum of time; and

·                    lessons were to be conducted during the lead-up training on hygiene in the field and preventative measures for operating in high heat and humidity.

36                  Notwithstanding the introduction of those changes before the April 2004 field phase, there had been 36 cases of heat injury and 19 heat associated dermatological cases during that course.

37                  In 2004 there were no reported cases of heat injuries in Corporal Courses held outside the wet season.

38                  After reading the brief, Brigadier Anstey met with the commander of the First Brigade, Brigadier J Cantwell to discuss the matters raised by the brief. Brigadier Cantwell wished to retain the defensive position scenario.  He offered engineering support to pre-dig the greater part of the required defensive position.

39                  Brigadier Anstey considered this, along with the changes already made, to be a significant way of reducing the risks concerning the Corporal Course.  Apparently he decided that the course would so continue, with the promised engineering support.  There was no evidence of any consideration of the advisability of consulting any doctor for advice. 

The November 2004 Corporal Course

40                  All participants in the course were Darwin-based. The initial stages of the course were conducted within Robertson Barracks in Darwin in an air-conditioned classroom environment.  There was no compulsory physical training on the course prior to the deployment to the field.  There was no structured program of re-acclimatisation to hot, outdoor conditions.  

41                  The course was deployed to Mount Bundey on 4 November 2004 and to the defensive position on 7 November 2004.

42                  The participants in the course had medical support only from two base grade medical assistants. Those medical assistants were not supervised.  They were not trained to give unsupervised medical treatment. Basic medical assistants are not permitted to operate in such a way regardless of the level of heat risk.

43                  There was no ambulance.  A Land Rover equipped with a stretcher was provided.

44                  Climatic conditions by reference to the WGBT measurements were not regularly monitored during the field phase of the course.  The course was provided with neither the personnel nor the equipment to do so.  The only measurements were taken on the morning of 10 November 2004 by visiting environmental health personnel.  All WBGT measurements which were taken on that day exceeded 32°.

45                  Accordingly, the actual WBGT levels preceding Trooper Lawrence’s death are not known.  Nor were they known to those in charge of the course, or medical support personnel.  However, the conditions during the course were extreme.  It is very probable that they routinely exceeded WBGT 32°.

46                  The defensive operation conducted in the field phase of the Corporal Course led to the trainees on the course being separated into three platoons forming a company defensive perimeter.  Morning and afternoon patrols were conducted from the defensive position.  The aim of the exercise was to assess trainees in such elements as: employment of offensive and defensive measures; battle skills; navigation; and giving orders.  Trainees worked in sections of approximately eight members with each fulfilling a different role in the section each day (including the role of Section Commander).

47                  An instructor at the course was assigned to each section during all activities.  Course instructors were experienced soldiers of Senior Non-Commissioned and Warrant Officer rank with broad experience in the conduct of training at Mount Bundey.

48                  The participants were given a first aid brief before going out to Mount Bundey for the field exercise component of the course.  One of the course lessons was about the role of Section Commanders in defensive operations and the requirement to monitor their section.  A briefing was also given on what to expect in the field.

49                  On 27 October 2004 an exercise was conducted with the participants which contained a twenty minute session dealing with the signs and symptoms of heat injury.

50                  The instructors briefed participants before they commenced patrolling activities about water intake and watching out for signs of heat stress in other members of the patrols.  Course participants and supporting staff were instructed in the “clear urine”indicator of adequate water intake.  Instructional staff monitored the water intake of course participants.  

51                  However the instructors did not monitor or enforce the consumption of water in accordance with the tables set out in SAFETYMAN.  It was a responsibility of each course member, when acting as the Section Commander, to ensure that members of their section remained adequately hydrated.  Neither instructional staff nor the course participants were aware of the water intake requirements in SAFETYMAN.

52                  Throughout the field section of the course a supply of drinking water was available to trainees at all times.  The drinking water quickly reached ambient temperature.  Two full 22 litre jerry cans were available to each section and these were replenished on the defensive position.  Flavoured additives were also issued to help replace salts and encourage drinking.

53                  Combat rations were largely used in the defensive positions.  Fresh rations were supplied during the two days before deploying to the defensive position and on day four of the exercise.  No further fresh rations had been provided before Trooper Lawrence’s death.  Trooper Lawrence ate little in the 48-72 hours preceding his death. According to Colonel Rudzki (now the Director, Occupational Health and Safety – Army) the emphasis on consuming food during the course appeared to be for the sake of calories and not for replacing salt, the latter being important in avoiding heat stress.  Medics told participants on the course to replace electrolytes and gave them sachets of electrolytes and mixed up squeeze packs to help replace salts.

54                  In the circumstances of the Mount Bundey defensive positions in November 2004, it seems that there was little or no effective relief from the heat, nor was there any effective shade available on the defensive position or elsewhere during the reduced activity period.  “Hootchies” (camouflaged-coloured, open tent-like structures) were available for use by the course participants to provide night-time protection from rain.  It is not the primary function of hootchies to provide shade, although they were so used.  The material used to make hootchies may radiate heat and actually increase the ambient temperature underneath them in full sun.  They were of no real use in relation to heat stress.

55                  Engineering support was provided at the commencement of the November 2004 field phase of the Corporal Course.  Backhoes were used to pre-dig a part of the defensive position.  Despite the assistance of engineering plant, the trainees still needed to do heavy digging to complete the fighting bays, spread soil, and to do other physically arduous tasks.  The trenches were dug in open ground rather than using the available shade.

56                  While the Corporal Course was deployed to the defensive position, another promotional training course for intending infantry corporals, the 5/7 RAR Subject 2 Corporal RA Infantry Course (“Subject 2 Course”) was also deployed to the field at Mount Bundey.  Participants in the Subject 2 Course were supported by an advanced medic, two basic medics and an army ambulance.

57                  On 5 November, five days before Trooper Lawrence’s death and two days before the Corporal Course was deployed to the defensive position, a private participating in the Subject 2 Course at Mount Bundey collapsed with heat injury.  He was evacuated to Royal Darwin Hospital as a Priority 1 (highest priority) casualty.  The reported circumstances and management of this casualty were very similar to those for Trooper Lawrence.  Private Scott was evacuated using the army ambulance which was available to support the Subject 2 Course.  He was nevertheless left with some “neurological deficit”.

58                  Prior to their deployment to the defensive position, staff and students on the Corporal Course were aware that Private Scott had been evacuated to Darwin and hospitalised.

59                  It was observed by medics evacuating Private Scott that the air-conditioner in the ambulance did not work. It was not repaired.  The same ambulance was subsequently used for the evacuation of Trooper Lawrence.  There was evidence from a senior Medical Officer that in his experience the air-conditioners in army ambulances rarely worked. 

60                  The Subject 2 Course was more strenuous and arduous than the Corporal Course.  Nevertheless the field phase of the Corporal Course would be strenuous, tiring and involve planned war-like interruption of sleep.  The SAFETYMAN standards were predicated on well-rested subjects.  Modifications were made to the Subject 2 Course to reduce the possibility of further heat injury.  These included changes to the times of patrol, the abolition of any activities during the reduced activities period and protocols prohibiting the speedy return to the field of participants who attended for treatment associated with heat illness.  No further modification was made to the Corporal Course.

61                  There were 66 participants, including Trooper Lawrence, in the field phase of the Corporal Course.  The course was an “all corps” including, for example, soldiers mainly engaged on clerical duties.  Many participants fell well short of battle fitness.

62                  In a general sense most participants on the Corporal Course were, as the parties put it, “desensitised” to the risk of heat injury.  They simply did not understand the seriousness of the risks to them. Several participants became concerned about the consequences of heat injury following the serious heat illness sustained by Private Scott.

63                  In the three days prior to 10 November 2004 five participants had reported to medics with symptoms of heat illness on nine separate occasions.  There were eleven cases of heat illness reported on 10 November 2004.

64                  Trooper Lawrence collapsed at about 5:00 pm on 10 November 2004 during a training activity.  He was evacuated to Darwin Hospital and pronounced dead. Trooper Lawrence died from acute heat stroke.

65                  As indicated earlier, the only WBGT measurements that were taken during the course were taken on the morning that Trooper Lawrence died.  These measurements were taken by visiting environment health personnel.  All the measurements exceeded 32°.

66                  The results of the WGBT measurements taken on 10 November 2004 were communicated by the private who performed the test to a sergeant on duty on the defensive position. Warrant Officer Lucas was not informed.  There was no procedure in place for him to be informed on that day.  There is doubt about the accuracy of those measurements because it appears that the person who took those measurements was not aware of the proper method of using the equipment.

67                  The approximate noon temperature at Mount Bundey on 10 November was 35°C to 36°C, at 4.00 pm it was 40°C and the humidity ranged between 35 to 50%.

68                  There was no WBGT measurement equipment in the field at the time of the section patrol but it was accepted that the climatic conditions on 10 November 2004 were extreme and it is probable an accurate WBGT index reading would have registered over 32°.

69                  Trooper Lawrence’s section did not complete the patrol activity that evening. They were picked up in a vehicle and returned to the section position.  The course was withdrawn from a defensive position on the next day and then to Robertson Barracks.  The field phase of the course continued out of Robertson Barracks for two days.  Even there, further heat illnesses were sustained and the field phase of the course was thereafter concluded earlier than had been intended.

The death of Trooper Lawrence

70                  The sequence of events on 10 November 2004, as described by Colonel Charles who conducted a thorough, internal Army investigation, in his report relating to Trooper Lawrence, is as follows:

0430 - 1000    Stand-to, morning routine, trainees worked to improve their defensive position.

1000 - 1200     Reduced activity period started. Trooper Lawrence reported he had vomited a small amount of clear fluid while sitting on gun sentry.  He reported that he was feeling sick. He was told to see the medic.

1100                Trooper Lawrence was seen by another trooper (a friend from another section) up against a tree while on gun sentry looking unwell and sweating.

1225                Trooper Lawrence presented to the assigned basic medical assistant attached to the Corporal Course at the rear of the defensive position (see below).

1300 - 1500    Reduced activity period continued. Trooper Lawrence was observed by a number of other course participants to be less energetic than he normally was.

1500                The reduced activity period concluded and Trooper Lawrence’s section prepared for patrol.

1530                Trooper Lawrence was seen laughing with others in his section as he was getting ready to go on patrol.  He was observed by some participants to be a bit more tired and lethargic than the others.

1545               Trooper Lawrence’s section travelled out to the patrol drop-off point on a Unimog truck.  One of Trooper Lawrence’s colleagues told him “You look like shit”.  Lawrence replied “Yeah, I’m fucked”.  All of the patrol members were very fatigued and very hot but they were all sweating.

1600 - 1615     Trooper Lawrence’s section dismounted at their drop-off point.  The Senior Instructor on the patrol, Warrant Officer Lucas, briefed the section on the outcomes expected from the patrol and asked the section whether there were any problems, reminded them of their duties and responsibilities and the need to be vigilant for signs of heat stress.  He did not observe Trooper Lawrence to be suffering any additional fatigue from that of his fellow section members.  The section patrolled approximately 700m where a section attack was initiated.

1700                The section attack was completed.  This activity was no more arduous than similar activities conducted on previous days.  After the attack was completed Trooper Lawrence was observed to be agitated when talking with the Section Commander.  Heat stress was immediately identified and Trooper Lawrence was moved to a creek line into the shade, his clothing was removed, he was fanned and water was poured onto him.

1705                The Senior Instructor with the patrol reported a Priority 3 casualty over the radio network.  Trooper Lawrence did not register to pain and his breathing was rapid and strong.

1710                Trooper Lawrence lost consciousness.  He was reassessed as a Priority 2 casualty [i.e. “Life or limb is in serious jeopardy. Evacuation should be effected as soon as possible”] and the section commenced carrying him approximately 350 metres to the road.

1720 - 1730     Those carrying Trooper Lawrence met up with Army medics and an Army ambulance.  Trooper Lawrence was loaded into the ambulance, the medics reassessed him as a Priority 2 casualty and drove to Scale A.

1735 - 1750    Trooper Lawrence was unloaded from the ambulance and taken into the Scale A Regimental Aid Post. IV fluids were started through two cannulae and ice was placed on his body.  He was returned to the ambulance which then drove towards Darwin.

1823                The Army ambulance met a St John’s Ambulance and Trooper Lawrence was handed over.

1827                The hand over was completed and the St John’s Ambulance departed for Darwin.

1933                Trooper Lawrence arrived at the Royal Darwin Hospital Emergency Department.

2025                Trooper Lawrence was pronounced dead.

71                  An autopsy was conducted by the Director of the Royal Darwin Hospital Forensic Pathology Unit on 11 November 2004.  The report concluded that the cause of death was Acute Heat Stress.

The medical treatment provided to Trooper Lawrence by the ADF on the day of his death

72                  Trooper Lawrence presented to the basic medical assistant attached to the Corporal Course at 12.25 pm on 10 November 2004.  He reported that he had vomited about 150 millilitres of clear fluid while he was on gun sentry and that he had shortness of breath afterwards, chest ache, head ache and slight dizziness, and had experienced slight dizziness after vomiting.  He said that he had drunk 8 litres of water since 4.30 am and had urinated six times.  He presented with a raised temperate and an increased pulse rate.  He claimed to feel better after 30 minutes.  He had some cold water, some sweet biscuits and the fan for 30 minutes.

73                  At 12.55 pm Trooper Lawrence was permitted to return to work.  He was advised to rest and reduce the pace of work.  The medical assistant initially believed that Trooper Lawrence had suffered a heat injury.  He ultimately assessed the cause of vomiting as due to Trooper Lawrence gulping his water too fast.  Trooper Lawrence still had a significantly increased pulse rate when he was permitted to return to work.  The medical notes record that when sent back to duty Trooper Lawrence had a pulse of 88 beats per minute having arrived with a pulse of 90 beats per minute.  The normal pulse of a fit young solider should be between 60 to 70 beats per minute at rest.

74                  There was no protocol for the instructor to be advised that a soldier had received treatment for heat related illness.  Warrant Officer Lucas was not aware that Trooper Lawrence had reported to the medic.

75                  The medical care provided to Trooper Lawrence from the time he became a casualty was as follows.

At location of collapse.          Trooper Lawrence was carried to shade, his clothing was loosened, his shirt was removed and water was poured on his undershirt and body.  He was observed to stop breathing for approximately 30 seconds.  He was carried to the road.

Action by Army medics.         The Army medics met Trooper Lawrence approximately 50 metres from the road.  They applied oxygen, which was hooked up to oxy-viva.  Trooper Lawrence was taken by stretcher into an Army ambulance.  Trooper Lawrence did not respond to questions, shaking his shoulder or rubbing his sternum - he appeared to be unconscious.  The Army medics drove Trooper Lawrence 6 kilometres to Scale A.

At Scale A.     Army medics removed Trooper Lawrence on a stretcher to an air-conditioned room, cut his clothing off, placed ice on his groin, armpits and neck.  Oxygen was supplied.  Cool running water was poured on him.  Cannulae were inserted in both arms and two litres of Hartmanns fluid was administered.  His mouth and airway were suctioned to keep them clear.  A rectal thermometer was inserted and measured Trooper Lawrence’s core temperature as 42.5 degrees C.  The medics moved Trooper Lawrence back to the Army ambulance and hooked him up to oxygen. Bags of ice (rubber gloves full) were applied to his body.  One bag of fluid was finished and replaced and the other bag almost finished.

In the Army ambulance.        Both bags of fluid were started again.  They drove for about 20 minutes until they met the St John’s ambulance.  Along the way medics inserted a Gueddels airway as Trooper Lawrence had stopped supporting his own airway.

Transfer to St John’s Ambulance.    The two ambulances met at 6:23 pm. The St John’s ambulance left at 6:27 pm.

76                  The basic medical assistants supporting the Corporal Course were unaware of the provisions of SAFETYMAN relating to heat injury.

77                  None of the staff responsible for directing the Corporal Course was adequately trained about the provisions of SAFETYMAN.

78                  Colonel Rudzki, who prepared a medical report for the Charles inquiry, noted that none of the soldiers who were with Trooper Lawrence appeared to understand the true hazard posed by exposure to high temperatures.  He said that the Army’s prevention and treatment strategies for heat related injury were focused largely on hydration.  He stated that this approach dominated management practices to the point that the cannulation of soldiers had become an accepted consequence of training in northern Australia.  The soldiers expected to be “bagged”, that is, cannulated.  The death of Trooper Lawrence exposed the inadequacies of this approach. 

79                  The matter does not however rest there.  In Colonel Rudzki’s words:

There appears to have been a culture that training took priority over all other issues.  Numerous witness statements referred tohow affected troops were by the heat and how poorly they felt.  Lawrence looked unwell but no more so than his peers.  Commencing a patrol activity in poor physical condition increases the risk of potential harm. ... Acclimatisation is likely to have been a key issue in the high rates of casualties seen.  Traditional army acclimatisation regimes for WW2 in Vietnam have involved 7 to 10 days exposure to non air-conditioned environments with regular physical activity in the heat which was progressive over time. ... It is possible that the troops deployed to MBTA were not acclimatised.  The work/rest tables in SAFETYMAN are predicated on troops being acclimatised. ... It is my view that a defeatist culture had evolved regarding heat injury.  Everyone expected to fall victim to heat and this reflected in the a heat casualty rates.  It is also reflected in the high numbers of hospitalisations over the past 5 years for presumed heat stroke.  Failure to appreciate the threat posed by heat itself and the consequent failure to measure both environmental and individual temperatures meant that effective risk management could not occur.  This represents training failure. ... Failing to appreciate the incidence and severity of heat stroke is also a reflection of training failure.

(Emphasis added.)

Investigation and actions taken following Trooper Lawrence’s death

80                  Following a preliminary investigation conducted by the ADF on 8 December 2004 Brigadier Anstey issued Directive No. 07/04 “Prevention of Heat Related Illness” to all training establishments.  Among other things, the new directive:

·                    required commanders to put safety before training,

·                    mandated the effective use of WBGT tests (and the procurement of WBGT equipment) and adherence to work/rest cycles in SAFETYMAN,

·                    directed commanders to consider the provision of shade, strict limits on digging, periodic rest periods off the field and showers,

·                    directed further training of staff and students about heat illness,

·                    mandated reduction of exposure to air-conditioning in the 7 days prior to deployment to the field,

·                    required the provision of air-conditioned ambulances where possible and

·                    directed hourly checks of trainees by instructing staff with more frequent checks when conducting active tasks such as patrolling.

81                  As a result of preliminary investigations, on 18 February 2005 a Comcare Investigator, Mr Wray, issued Colonel Dunn, Commandant Regional Training Centre, Northern Territory with an Improvement Notice for a breach of s 16 of the OHS Act.  (That Improvement Notice was revoked and replaced with another).

82                  The Army continued its review of its approach to heat injury and on 8 April 2005 Brigadier Anstey issued a revised directive: Prevention of Heat-Related Illness and Injuries.  The revised directive was a significant improvement on the earlier one in many respects.  It began with a statement recognizing that heat stress had been responsible for fatalities and very serious illness during training in the Australian Army.  It contained a clear direction that commanders and other trainers at all levels were to cease training if they believed it unsafe to continue, regardless of WGBT readings.  Readings were to be taken hourly during daylight.  WGBT training was to be undertaken immediately by qualified instructors.  Other changes included:

·                    a requirement for a 14 day acclimatisation plan,

·                    new risk assessments for each field phase of a training course,

·                    recognition of individual differences in heat tolerance,

·                    training staff were required to read immediately and annually revise the directive as well as the causes, symptoms and treatment of heat illness and their specific responsibilities regarding the supervision of trainees as they related to heat illness and

·                    a requirement that all heat illness cases were to be the subject of an incident report.

83                  On 14 April 2005 Colonel Dunn sent Mr Wray a response to the Improvement Notice.  On behalf of Comcare, Mr Wray accepted this response as fulfilling the action requirements contained in the Improvement Notice.

84                  On 28 February 2005 Colonel Charles was appointed to inquire into and to report upon the circumstances of the death of Trooper Lawrence.  He issued his report containing 67 findings on 6 May 2005 and two follow up reports on 16 August 2005 and 25 January 2006.  The inquiry was thorough and the report candid.

85                  In August 2005 Mr Wray provided a report into his findings relating to circumstances of Trooper Lawrence’s death.

86                  As a result of Trooper Lawrence’s death the Deputy Chief of Army, Major General Ian Gordon, established a Heat Injury Remediation Project to systemically review and improve the Army’s Heat Injury Management Policy and Procedures.  The Heat Injury Remediation Project is currently led by the Director, Occupational Health and Safety - Army, Colonel Rudzki.  The project reports regularly to the Army Safety Board.

87                  The parts of SAFETYMAN which dealt with Defence Heat Injury Policy were amended and additional chapters were issued.  The revised policy was delivered directly to units in an electronic format and was made available on the ADF’s intranet.

88                  Ninety heat stress monitors, which enable estimation of a person’s core temperature without the necessity for taking the temperature rectally, were purchased and distributed to units in northern Australia by June 2005 and a further 156 heat stress monitors were issued to units not located in tropical regions by late December 2005.  The Army spent $685,000 on the monitors.

89                  Other training sources in the form of DVD, CD-ROM and e-learning training packages were distributed to ADF units by 30 September 2005.  All Army personnel now undergo annual heat injury training using these resources.

90                  An incident report is now raised any time a soldier requires intravenous fluid so the Army has a clearer indication of what is actually happening in the field.  The information is collated and used to determine emerging trends and provide feedback to commanders.

91                  The Army’s Director, Occupational Health and Safety has initiated two priority research tasks with the Defence Science and Technology Organisation on the effect of air-conditioning on acclimatisation, and the most rapid and effective means of cooling soldiers in a field setting.

92                  On 20 May 2005, the Army began the implementation of the Army Occupational Health and Safety Management System known as ArmySAFE.  This is apparently intended to be a comprehensive and modern response to all the demands of occupational health and safety in the Army.  This initiative coincided with the Army’s entering into a formal partnership arrangement with Comcare to improve the Army’s health and safety performance.  The system’s objectives include a 10% annual reduction in injuries and in medical discharges.  This is to be achieved in part by the establishment of 42 permanent and 45 reserve positions dedicated to occupational health and safety.  The cost of the permanent positions is approximately $6 million per annum.  Colonel Rudzki occupies the new position of Director, Occupation Health and Safety - Army, and is responsible for the implementation of ArmySAFE.  All incidents involving injuries (including minor heat injury), near misses and dangerous occurrences must now be reported and recorded in an incident report and monitored by Colonel Rudzki.

93                  The Army no longer conducts Corporal Courses in the Northern Territory during the wet season.  Only three Corporal Courses are conducted each year by RTCNT.

94                  On 23 September 2005 the Chief of Army issued a Directive on heat injury management which included the Army’s Heat Injury Remediation Project (CA Directive 5/05).

95                  On 28 October 2005 the ADF amended its SAFETYMAN, chapter 6 - Defence Heat Injury Policy.  Chapter 6, as amended, sets out the ADF’s current heat injury policy, including revised work/rest tables.  The objectives of the policy are prevention, effective management, reduced occurrence and improved treatment.  The policy aims to reflect world’s best practice and was to be reviewed by an international panel of experts in November 2006 to ensure that it did just that.  As at the date of trial, Colonel Rudzki believed the policy did reflect world’s best practice.

96                  The applicant accepts that ADF personnel have been and will continue to be required to serve overseas in conditions of extreme heat and humidity.

97                  The respondent accepts that it would not be justifiable to expose participants on routine training courses or promotional courses such as the Corporal Course to the perils of heat injury by training in extreme conditions.  The risk to health and the extent of support required under the revised SAFETYMAN tables means that, in practice, courses such as the Corporal Course will not be conducted in extreme conditions.

98                  By the time of the hearing, upon receiving advice from senior counsel, the respondent properly abandoned any contention that it ought to be excused for its contravention of the OHS Act under cl 13 of Sch 2 of the Act.

Contraventions of the OHS Act

99                  It was agreed by the ADF that, contrary to s 16(1) of the OHS Act, it did not take the following reasonably practicable steps to protect the participants from that risk:

·                    The ADF did not conduct the field phase of Corporal Courses during the wet season at a training area outside the Northern Territory.

·                    The ADF did not appropriately promulgate its own policies and procedures contained in SAFETYMAN and train relevant personnel about those procedures.

·                    The ADF failed to provide a structured system of acclimatisation prior to the field phase of the Corporal Course.

·                    The ADF did not effectively monitor the heat conditions of Mount Bundey and then adjust, discontinue or suspend the field phase of the course in accordance with the Policies and Procedures contained in SAFETYMAN according to WBGT readings or when participants began to experience symptoms of heat injury.

·                    The ADF did not introduce rest/work cycles as required by SAFETYMAN.

·                    The ADF did not provide for appropriate rest periods in shaded areas as required by SAFETYMAN.

·                    The ADF did not have available Advanced Medical Assistants to monitor participants for signs of heat injury, treat them and supervise more junior Medical Assistants.

·                    The ADF did not provide a fully qualified medical officer and resuscitation team, as is now required by ADF policy where training is to be undertaken in conditions of extreme heat.

·                    The ADF failed to provide an ambulance with working air-conditioning. 

Terms of the declaration

100               If the Court considers the respondent contravened s 16(1), cl 2(1) of Sch 2 obliges the Court to make a declaration that the respondent contravened that subclause.  

101               Ultimately the parties agreed upon the text of a declaration which, with some formal changes, I will make.

Penalty

102               Schedule 2 to the OHS Act was inserted in 2004.  The Explanatory Memorandum to the amending Act stated that it was modelled in large part on the enforcement approach of the Commonwealth Authorities and Companies Act 1997 (Cth), in turn modelled on the Corporations Law.

103               The object of Sch 2 to the OHS Act is to secure compliance with the provisions of the Act.  While cl 2 makes it mandatory for a court to make a declaration of contravention, in contrast, cl 4 gives the court a discretion to order “a person to pay the Commonwealth a pecuniary penalty”.  Clause 4(3) provides that a penalty is “a civil debt payable to the Commonwealth”.  It may be enforced by Comcare as if it were an order made in civil proceedings against the person to recover “a debt owed by the person”.  The debt arising from the order is taken to be a judgment debt.  Section 11(3) of the Act nevertheless shows a clear intention that the Commonwealth itself should be liable to a penalty.

104               There is some oddity in the notion of a court established under Chapter III of the Constitution being required to consider ordering the Commonwealth to pay a penalty by way of civil debt to itself, albeit that the debt is enforced by Comcare, itself a manifestation of the Commonwealth (although cloaked with legal personality).  Neither party ultimately raised any such issue or any constitutional question and, having regard to the gravity of the subject matter, this was not the case for the Court to insist upon a close demonstration that it validly has jurisdiction.

Applicant’s submissions

105               The applicant directs attention to the following:

·                    The ADF had for some time been aware of the risk of serious heat injury: it had prepared and published detailed policies and procedures relating to heat injury in SAFETYMAN.

·                    For reasons which are not clear, little regard was paid to the risk of heat injury or to compliance with the policies and procedures contained in SAFETYMAN.  The provisions of SAFETYMAN dealing with heat injury were virtually disregarded at all levels.

·                    The centrepiece of SAFETYMAN was the regular monitoring of conditions by reference to the WBGT. The requirements of SAFETYMAN varied according to the particular reading that was taken.  It is self evident that if readings were not taken, as they were not, the requirements of SAFETYMAN could not be implemented.

·                    There was systemic disregard for SAFETYMAN, shown by the fact that equipment was not issued to units to enable them to monitor the conditions.  Not until after the death of Trooper Lawrence were units issued with such equipment.

·                    At the time of the contravention and previously, WGBT measurements were only taken irregularly, on request, by visiting environmental health personnel.  When such readings were taken they were not then communicated to the commanding officer.  Further, the environmental health personnel were not properly trained in the taking of measurements.  Therefore reliable measurements were not available, even on the few occasions when they were taken.

·                    It was obvious that the procedures and policies in SAFETYMAN were being disregarded.  The absence of any serious attempt to implement and ensure compliance with ADF policies and procedures was a serious failure, particularly because:

(i)         Prior to the death of Trooper Lawrence there had been 141 cases of hospitalisation for heat related illness. According to Colonel Rudzki, these were probably heat stroke and represented “near misses”.

(ii)         Colonel Rudzki stated in his report to the Charles inquiry:  “Given the high rate of hospitalisation (approximately 25 per year) it is not surprising that a fatality eventually occurred.”

(iii)       There was a known history of significant heat injury on previous Corporal Courses conducted during the wet season.  

(iv)              Warrant Officer Lucas, in the briefing paper he prepared prior to the course, set out in some detail the previous incidence of heat injury and referred expressly to the provisions of SAFETYMAN.  It was self evident from the paper that SAFETYMAN was not being complied with.  It was apparent that regular WGBT readings were not taken.  The only measurements that were taken exceeded WGBT 32°. 

(v)                    There was a stark warning of the risks.  The very serious incident involving the participant on the other training course at Mount Bundey occurred two days before the deployment of the Corporal Course to the field.

(vi)                   There was also an unexplained failure to support the Corporal Course with proper equipment and adequately trained medical personnel.  These were significant failures which increased the magnitude of the risk occasioned by the failure to comply with SAFETYMAN and the remote location.

106               The explanation for these failures given in the Charles report was that training overrode all other considerations.  Further, relevant personnel, including medics and those in charge of the Corporal Course, were either not aware of the existence of the heat injury policies in SAFETYMAN or not aware of their detailed contents. The reason for this has not been explained.  

107               The applicant contends that the seriousness of the breach is compounded by the fact that the ADF was able, within a relatively short period after Trooper Lawrence’s death, to put in place systems so that the requirements of SAFETYMAN were implemented rather than disregarded.  For instance, within a short period units were equipped and trained to take WGBT readings.  These issues were not, however, addressed until after the preventable death of a young soldier on a training exercise. 

108               The 11 other attendances on medics, including a Priority 2 attendance, for heat illness on the day that Trooper Lawrence died, indicated a serious threat.  Trooper Lawrence himself attended a medic on an earlier occasion on the day of his death, reporting symptoms consistent with heat illness.  There was no procedure in place for Warrant Officer Lucas to be informed about those attendances or the incidence of heat illness generally.  He was not aware of the extent of heat illness on the day of Trooper Lawrence’s death, or of the fact that Trooper Lawrence had attended a medic earlier in the day.  He was also unaware that WGBT readings had been taken that day that exceeded 32˚.

109               According to Warrant Officer Lucas he was not aware of the detail of the work/rest cycles in SAFETYMAN.  (How it was that he was aware of some provisions, but not others, is not clear.)  Medical assistant personnel were also unaware of the provisions.  Such lack of awareness represents a significant failure in training and promulgation of ADF policy.  

110               As steps were not taken to implement the policies and procedures in SAFETYMAN, it may be inferred that the persons responsible for its implementation either made a conscious decision not to do so, that they were unaware of its terms or a combination of both.  Whichever may be the case, this represents a serious breach of the respondent’s obligations.

111               The reduced activity period provided little practical protection against the risk of serious heat injury because no respite from the heat was provided.  Colonel Charles in his report recognised the cumulative effect of heat exposure.  He found that the absence of relief from the heat had the consequence that the reduced activity period was of little value.  Participants sat in the sun during rest periods or sought to take shade under hootchies, which did not relieve the trainees from the heat.  Appropriate shade could have been provided either by conducting the course in an area where natural shade was available, erecting artificial shade structures, or using the facilities at Scale A during the reduced activity period.

112               A program of acclimatisation was not introduced prior to the introduction of the field phase.  It is not apparent why there was no such program. SAFETYMAN provided that personnel required a program of gradual acclimatisation. Warrant Officer Lucas referred to the effects of declimatisation in his brief prior to the commencement of this course.  The expert evidence of Colonel Rudzki was that “acclimatisation is likely to have been a key issue in the high rates of casualties seen”.

Respondent’s submissions

113               The respondent accepted that this is a serious case and among the more serious cases but contended that it did not fall in the worst class of cases.  Such a class was said to be confined to cases where there has been deliberate or wilful disregard of a worker’s health or safety – where the employer or the responsible agent of the employer has said, in effect, “I am aware of the damage to health and safety, but I am just going to ignore it”.  Here, he or they who made the decision or decisions to proceed with the Corporal Course were not “truly mindful” of the risks

114               As to the objective facts of the respondent’s contravention, the following matters were pointed out:

(a)        None of the soldiers or the staff understood the true hazard posed by exposure to high temperatures.  This led to a failure to manage the risk effectively and a belief that the risk was manageable by the means adopted.  The highly experienced senior instructor, Warrant Officer Lucas, had been confident of the Army’s ability to deal with heat casualties without any suffering permanent ill-effects.

(b)        It was a requirement of the course that the participants demonstrate leadership under arduous/stressful conditions.  Such training is of the highest importance to successful operational outcomes, including survival of personnel.

(c)        The Army performs a variety of operational roles in overseas deployments, including East Timor, Bougainville, Afghanistan and Iraq.  Trooper Lawrence had himself served a 6 months tour of duty in Iraq.  In addition to the dangers involved in suppressing insurgencies, such deployments require soldiers to operate in difficult climates under arduous and stressful conditions.  ADF personnel will continue to be required to serve overseas in conditions of extreme heat and humidity.

(d)        There was a culture that training took priority over other issues - meaning that the Army got the balance between training and safety wrong.

115               The principal factors argued in mitigation are:

·                    Following Trooper Lawrence’s death, the Army discontinued using Mount Bundey for wet season training courses incorporating a field phase, pending review of its approach to heat injury.  Mount Bundey has not since been used in the wet season for such courses.

·                    The Army immediately conducted an initial review of its approach to heat injury, resulting in the promulgation of Brigadier Anstey’s new and greatly improved directive: Prevention of Heat-Related Illness and Injuries, dated 8 December 2004.

·                    The Army continued its review of its approach to heat injury and on 8 April 2005 Brigadier Anstey issued a further revised directive, Prevention of Heat-Related Illness and Injuries.

·                    As a direct consequence of Trooper Lawrence’s death and the other severe heat stroke case referred to, the Chief of Army established the Heat Injury Remediation (“HIR”) Project, which is ongoing.

·                    The Army co-operated fully with the Comcare investigator (Mr Wray).  The improvement notices issued were promptly complied with by the Army.  

·                    The Army initiated its own inquiry into the circumstances of Trooper Lawrence’s death.  The results are contained in three reports prepared by Colonel Charles.  The first two pre-dated the Northern Territory coronial inquiry and were tendered to the Coroner.  Colonel Charles’ investigations were thorough and far-ranging, and all of the main criticisms of the Army’s approach to heat injury prior to Trooper Lawrence’s death were identified in Colonel Charles’ first report. All of the recommendations made in that report were implemented.  There can be no suggestion that by initiating and publishing Colonel Charles’ reports the Army has attempted to minimize or gloss over its failings regarding the circumstances of Trooper Lawrence’s death.  The reports are highly embarrassing to the Army.

·                    To make itself further accountable for Trooper Lawrence’s death, the Army submitted to the Northern Territory Coroner’s jurisdiction when it was not legally obliged to do so, a fact remarked upon by the Coroner.  

·                    The Army has admitted responsibility for Trooper Lawrence’s death and apologised publicly and privately to his family and friends.  At the coronial inquiry, Brigadier Bornholdt, on behalf of the Army, accepted responsibility for the soldier’s death, acknowledged his service to his country and, in the presence of his family, apologised to them for the Army’s failures.  The Coroner, who witnessed Brigadier Bornholdt’s apology, said the Army had “been accountable in my view and have accepted fault and have made an abject and genuine apology.”

·                    The Coroner remarked, with justification, that “[i]n all my years as a Coroner I do not think that I’ve seen a better or more commendable institutional response to fault discovered within the institution that has lead to death”.

·                    Since Trooper Lawrence’s death the Army has provided support and comfort to his family and his fiancée.  

Conclusions

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) 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;

(xi)       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.

121               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’.

123               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.

124               The maximum penalty is 2,200 “penalty units”, a penalty in money terms of less than $250,000.  While this is, relatively speaking, very low, and would itself be likely to have no deterrent (or otherwise useful) effect, it provides, as does the Court’s declaration, an occasion for what I hope is a properly measured denunciation, on behalf of the Australian people, of the Army’s breaches of the law.

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.

126               I must also abate the penalty to a degree on account of the Army’s frank and honest acceptance of its shortcomings and its commendable efforts to mend them.

127               About eight years before Trooper Lawrence died, a sensible and senior expert trainer reported that it would be “folly” to train soldiers in field work in the wet season in the Northern Territory.  Among other things, the likely discomfort to participants would prejudice their learning process.  Army personnel were at pains to prepare and issue SAFETYMAN in 2002.  SAFETYMAN, as it existed before the Corporal Course, was not criticised by Comcare as then being inadequate.  Had that manual been followed it is likely that a fine young soldier would be alive today.  SAFETYMAN in particular ordered that routine training, “getting the job done”, was not to take precedence over the serious and difficult risks of heat stroke.  In 2004, over an appreciable period and not just a single day, the Army failed its legal obligations in the ways admitted and in circumstances fairly characterised in the submissions of both parties.

128               It is true that the Army made, through Brigadier Bornholdt an “abject” apology to Trooper Lawrence’s family.  No less was called for.  It is a bitter irony that it fell to the same officer who, had his 1996 (or 1997) warning been listened to in 2004, would have avoided Trooper Lawrence’s death, to tender the apology on behalf of the Army.

129               On the other side of the record there was, as submitted, no conscious and deliberate disregard of the soldiers’ safety.  Rather, on quite inadequate grounds, despite the great experience of those involved, it was decided that the risks could be satisfactorily managed.  A broad general experience of living and working, and even Army service, in tropical areas of Australia and elsewhere would not necessarily equip a person with an understanding of all the mechanics of when and how heat illness might be caused, and how serious and unpredictable heat injury might be.  Trooper Lawrence does not seem to have had any inherent physical characteristics that might have predisposed him to the fatal injury as mentioned.  This was no “eggshell skull” case.  The risks were greatly underestimated.

130               The decision to proceed with the Corporal Course in November 2004 was influenced by the “culture” identified by Colonel Rudzki.  To the extent that limited resources contributed, as I think they did, to that culture and to the decision to hold the course in November 2004, it is no answer to rely on such a limitation.  Resources are always limited.  If the law obliges employers (as it does) that, as far as is reasonably practicable, they must take steps to protect employees’ health and safety, they must allocate resources so as to acquit that obligation.  In the judgment of what is “reasonable”, the effects on life and limb and on actual resources, if health and safety is not protected, need to be weighed.  It was not suggested here that resources could not reasonably have been found to avoid the felt necessity to embark on the November 2004 course or to continue with it after the dire warning implicit in Private Scott’s heat injury. 

131               The post-accident response of the Army, while it shows how much more might have been done before Trooper Lawrence’s death, does deserve, in an imperfect world, the praise given to it by the Coroner.  In such a world, one cannot reasonably ask for more.  There appears to have been no cover-up, no protection of any officer, senior or otherwise, but on the contrary, a well-organised, expert and determined set of initiatives taken to discover and redress the significant deficiencies and mistakes and to institute new and better forms of protection against heat injury and illness.  On such evidence as is before me, the ADF has sought to enter what is hoped to be a new era of service safety, both as to heat illness and generally.

132               I will order a penalty of 1800 penalty units.  (That translates, on the somewhat outdated scale of money equivalents for penalty units provided by the Crimes Act 1914 (Cth) and in force as at the hearing, to a money sum of $198,000.  Anything less would invite a lack of confidence in the Court as well as concern about the state of the law.

133               I respectfully suggest that consideration be given by the decision-makers for the recipient of the penalty to payment thereof to Trooper Lawrence’s family by way of a modest, concrete gesture of consolation.

Necessity of law reform

134               I commend this case to the attention of the Parliament.  I was informed that the relevant laws are under review.  There are no doubt difficult issues as to how best to mandate compliance by public authorities and officers with occupational health and safety laws.  There are also, no doubt, further complexities in thus dealing with the armed forces, even as to their peacetime and/or routine domestic operations.  That said, the present state of the law is not such as to engender public confidence that proper legal standards of protection of Commonwealth employees, including our service people, is rigorously required of their superiors, on pain of consequences that will really bite.  Had this case occurred in the private sector, a criminal prosecution of at least the employer would have been likely.  Without apology, I express myself more strongly in this matter than judges normally do.

Associate:

Dated:         4 May 2007