FEDERAL COURT OF AUSTRALIA

Comcare v Commonwealth of Australia [2009] FCA 700

INTRODUCTION

In accordance with the practice of the Federal Court in some other cases of public interest, North J has prepared this brief statement to accompany the reasons for judgment, delivered today. It must, of course, be emphasised that the only authoritative pronouncement of the Court’s reasons is that contained in the published reasons for judgment. This summary is intended to assist in understanding the principal conclusions reached by the Court, but is necessarily incomplete.

SUMMARY

1.                  This case involves every parent’s worst nightmare.

2.                  Nathan Francis was 13 years old.  He was a year 9 student at Scotch College.  He was to go on his first cadet camp with the Scotch College Cadet Unit on 29 March 2007.

3.                  Parents were told in a written notice that boys were not to bring food to the camp because a large amount of time and money had been devoted to the menu for the camp. 

4.                  Parents were required to advise the cadet unit in writing about any medical conditions.  Nathan’s mother, Jessica, replied in writing that Nathan suffered from severe peanut allergy. 

5.                  It was known to the Army and in the school community generally that if people with peanut allergy ate any peanut they could suffer potentially life threatening consequences.  Notwithstanding this knowledge and Mrs Francis’ advice, Nathan was given an Army ration pack which contained a beef satay meal made with peanut.

6.                  At lunch time on the first full day of the camp Nathan took a mouthful of the beef satay meal.  He was unconscious within half an hour and was pronounced dead on arrival by air ambulance helicopter at the Royal Children’s Hospital later that afternoon.

7.                  Under the Occupational Health and Safety Act 1991 (Cth)  the Commonwealth has a duty to take all reasonably practicable steps to protect the health and safety of people covered by the legislation.  In relation to school cadets the duty is to be performed by the Chief of Army. 

8.                  Following the death of Nathan, Comcare took proceedings against the Commonwealth for breach of this duty. 

9.                  The Commonwealth admitted liability for the contravention and agreed that the Court should made a declaration under the Act that it had through, the Chief of Army, contravened the Act by supplying Nathan with food containing peanut after having been told that he had a severe peanut allergy.  The declaration also related to two other students who had notified the cadet unit that they had peanut allergy and were also supplied with food containing peanut. 

10.              Comcare and the Commonwealth also agreed that the Court should impose a pecuniary penalty on the Commonwealth.  The maximum penalty under the Act for such a contravention is $242,000.  The Commonwealth accepted that the contravention was in a serious category but the parties did not agree on the appropriate amount of the penalty.  The Court therefore had to rule on this matter and has determined that the appropriate penalty is $210,100.

11.              The Act stipulates that the penalty is payable to the Commonwealth.  One purpose of imposing a monetary penalty is to deter the wrongdoer from further contraventions.  That purpose cannot be served if the penalty is, as in this case, payable to the perpetrator of the contravention.  In the reasons for judgment it is suggested that consideration be given to changing the law in this regard.

12.              On the same cadet camp six boys were lost in the bush for 18 hours without the required radio communication being available.  This incident amounted to a further failure to take reasonably practicable steps to protect the health and safety of the boys on the cadet camp.  It amounted to a further contravention of the Act.  The Commonwealth has given a written undertaking which has been accepted by Comcare and is designed to prevent a recurrence of such an incident on other cadet camps.  The Court will adjourn this aspect of the case for one year to allow the Commonwealth to demonstrate compliance with the terms of the undertaking.

13.              The attention in this case has been directed to the responsibility of the Commonwealth acting through the Chief of Army.  However, the evidence demonstrated that all those who ran the camp were either teachers or staff of Scotch College.  The Act does not impose responsibility on the school.  Thus, the Court could not examine this matter.  The Court was told that the Victorian WorkSafe Authority has apparently decided not to take action against the school.  The Court was also told that the Victorian Coroner has not yet determined whether to hold an inquest into the death of Nathan.  In the reasons for judgment it is strongly recommended that the Coroner conduct such an inquest so that the role of the school can be examined in public.

14.              Finally, at the invitation of the Court Brian and Jessica Francis explained the circumstance of Nathan’s death and the impact of them.  It was brave of them to do so.  Their voice has been a great assistance to the Court in deciding the issues in the proceeding.           

Melbourne, 30 June 2009

This judgment is available in full text on the internet at the following address: www.fedcourt.gov.au