FEDERAL COURT OF AUSTRALIA

Comcare v Commonwealth of Australia [2011] FCA 1043

THE COURT DECLARES THAT:

1.    On 24 September 2009, at Canungra Training Area in Queensland, the Commonwealth of Australia, acting through the Chief of Army as the employing authority of members of the Australian Army Cadets (AAC), contravened subclause 2(1) of Schedule 2 to the Occupational Health and Safety Act 1991 (Cth) by reason of having contravened section 16(1) of the said Act in that it:

(a)    supplied Cadet Timothy Huestis with a ‘hot box’ meal containing peanut satay for his consumption despite having been informed that Cadet Timothy Huestis was allergic to peanuts;

And, in so doing, it failed to:

(b)    warn the parents of AAC cadets about the contents of the hot boxes;

(c)    warn AAC cadets about the contents of the hot box;

(d)    warn AAC cadets with pre-existing food allergies of the contents of the hot boxes;

(e)    make appropriate use of information provided by AAC cadets and parents of AAC cadets regarding pre-existing or known allergic conditions and correlating that information with the potential risk of being exposed to allergies through the supply of food contained in hot boxes;

(f)    ensure that the contents of hot boxes allocated to AAC cadets did not include food products or allergens that may have triggered allergic responses by removing or requiring the removal of peanut-based food products from the hot boxes;

(g)    prevent distribution or provision of peanut-based food products to AAC cadets with pre-existing allergic conditions by:

(i)    inspecting the contents of hot boxes to be allocated to those individual AAC cadets who had given notice of allergic conditions;

(ii)    isolating cadets with pre-existing medical conditions and/or notified food allergies at the time of distribution of the hot boxes and issuing them with hot boxes that did contact peanut products or other food allergens;

(h)    issue any or any adequate instructions or provide adequate supervision regarding the distribution of the hot boxes;

(i)    issue any adequate instruction or provide adequate supervision regarding consumption of contents of hot boxes;

(j)    prevent the consumption of hot boxes containing food allergens by AAC cadets with food allergies;

(k)    not distribute hot boxes without consultation or consideration of pre-existing medical conditions;

(l)    provide content labelling on the hot boxes; and

(m)    label the hot boxes intended for distribution to AAC cadets with allergies with the name of the AAC cadet for whom the hot box had been prepared.

AND THE COURT ORDERS THAT:

1.    Pursuant to clause 4 of Schedule 2 of the said Act, the respondent is to pay to the Commonwealth of Australia a pecuniary penalty in the sum of $150,000.00.

2.    The respondent is pay the applicant’s costs of and incidental to the proceeding to be taxed if not agreed.

3.    Payment of the pecuniary penalty is to be made by the respondent not later than 30 September 2011.

AND THE COURT DIRECTS THAT:

1.    The District Registrar is not, upon any taxation of costs, to make any allowance in respect of travelling expenses for either solicitors or counsel.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1    On 24 September 2009 at the military establishment known as Kokoda Barracks, at Canungra in the Gold Coast hinterland, an Australian Army Cadet, Cadet Timothy Huestis, was served a meal in the field which contained a peanut-based product. Cadet Huestis’ parents had declared to the Commonwealth the existence of his allergy to peanut-based products before then. Cadet Huestis suffered an allergic reaction upon consumption of that meal. The reaction was sufficiently severe to require his hospitalisation. Arising out of those particular circumstances, Comcare, which has responsibilities for the administration of the Occupational Health and Safety Act 1991 (Cth) (Occupational Health and Safety Act), has instituted civil penalty proceedings against the Commonwealth of Australia.

2    What falls for consideration today is the question of whether to grant declaratory relief and, further, whether and in what amount a civil penalty ought to be imposed. The detailed background to the case is to be found in a statement of agreed facts which was tendered in evidence. The terms of that agreed statement are lengthy. They are set out in a schedule to these reasons for judgment.

3    In addition to that evidence, I had the benefit of evidence from a senior officer in the Australian Army, Lieutenant Colonel Peter Andrew Davies, who has particular responsibilities within the army in relation to occupational health and safety. I am quite satisfied that Lieutenant Colonel Davies gave honest and, indeed, candid evidence on that subject. It will be necessary to refer in detail to that evidence, along with particular aspects of the agreed statement of facts, and inferences which I propose to draw, later in these reasons for judgment.

4    It is first desirable to make some general observations about the organisation of which Cadet Huestis was a member. Cadets were a feature of Australian society even before Australia became a separate nation. The first cadet units were established as far back as 1866 at Saint Mark’s Collegiate School in New South Wales, which unit later became the King’s School Cadet Corps in 1869. In that particular school-based heritage one finds an enduring but not universal aspect of the cadet system. To this day many schools, for good and wise reasons, foster cadet units of one or the other or sometimes all three services. Other cadet units are regionally-based rather than school-based, thereby enabling a wider reach for the benefits of cadet service to be given to Australian youth. Those benefits are considerable.

5    In terms of the underlying philosophy for the army cadets, a statement of the purpose of the Australian Army Cadet experience is to be found in a current brief concerning the Australian Army Cadets, which was part of Lieutenant Colonel Davies’ evidence. One sees from that that the goals of the cadet program include:

    conducting a creative personal development program in a military-style environment that extends individuals beyond their self-imposed limits;

    developing an understanding of the balance between personal freedoms and choice and the responsibilities that they bring;

    promoting self-reliance, self-esteem, and self-discipline; and

    developing and recognising a broad range of skills including leadership and teamwork.

6    Other goals of the army’s cadet program include contributing to social development and contributing to the development of the army. In this latter regard cadets cooperate with the community and are seen to enhance the reputation of the army and the community. They live army values, maintain army customs and traditions, develop an understanding of what the army and the wider defence organisation does, and experience career opportunities within the defence department.

7    Legislative foundation for the Australian Army Cadets and the other cadet services is to be found in s 62 of the Defence Act 1903 (Cth), and in the Cadet Forces Regulations 1977 (Cth) (Cadet Forces Regulations) made pursuant to that Act, the Naval Defence Act 1910 (Cth) and the Air Force Act 1923 (Cth).

8    One sees within those regulations a code of conduct in Sch 4 which sets out the conduct expected of members of a cadet force. It is obvious from the parliamentary provision in s 62 and in the Cadet Forces Regulations, including that code of conduct, that Parliament and the executive government see a particular national interest in the fostering, by the various arms of the Defence Force, of Army, Navy, and Air Force Cadets.

9    As I disclosed to the parties, I have had personal experience during the course of schooling with a predecessor to the Australian Air Force Cadets, the Air Training Corps. That experience was nothing other than positive and beneficial. I am quite certain that the benefits extolled in the brief to which I have made reference are very real. Delivery of those benefits comes through a combination of regular and reserve service personnel who are assigned to cadet support duties, Australian public servants, who undertake a similar role, and volunteers, who take up appointments as officers or other ranks within the instructor positions in the cadets. The valuable national service which such volunteers provide is recognised in our national honours system by Her Majesty the Queen, on the advice of the Australian Government, in the Australian Cadet Forces Service Medal. The purpose of that medal is to recognise long and valuable service to the cadet forces.

10    As a matter of deliberate policy, the cadets have what one might describe as a liberal recruitment base. By that I mean that persons with an allergic condition, such as Cadet Huestis, are not denied enlistment. That is obviously a policy value judgment made by the executive government to widen the ability of our youth to derive the benefits from cadet service to which I have referred. There is, with that particularly admirable policy value judgment, a commensurate obligation which falls upon those who come to supervise cadets. That is the obvious one of ensuring that particular conditions are accommodated in terms of cadet training.

11    Within the army, logistic considerations, as I understand it from submissions, can and do have a different impact such that a recruitment base is narrowed, thereby making it more readily possible to have “one size fits all” catering and other personnel-related procedures. This is not so with the cadets.

12    The incident that I have described, in general terms, at the outset of these reasons for judgment, and which is more particularly related in the agreed statement of facts, was not unprecedented. In 2007, a similar incident in terms of the provision of a meal containing a peanut-based product occurred, sadly with a much more serious outcome. The cadet concerned died. That particular incident became the subject of proceedings in this court: Comcare v Commonwealth of Australia (2009) 184 IR 441 (Comcare v Commonwealth of Australia).

13    One sequel to that proceeding was the entering into by the Commonwealth, via the Chief of Army, of what is known as an enforceable undertaking. Proceedings in respect of that earlier incident concluded on 30 June 2009. It is apparent from Colonel Davies’ evidence that the Commonwealth, through the Australian Army, took to heart the terms of that undertaking in terms of a wide-ranging review, in conjunction with Comcare, of then-existing practices and procedures. The result of that particular review is attested to by a response which Comcare gave to the Chief of Army last year by a letter dated 28 June 2010. The then Chief of Army was informed by the Deputy Chief Executive Officer of Comcare, that Comcare was satisfied that the terms of the undertaking have now been met.

14    The Deputy Chief Executive Officer further advised that no further action in regard to the undertaking was therefore required. It is worthy of note that the Deputy Chief Executive Officer expressly recorded his thanks to the Chief of Army:

…for the demonstrated commitment of the individuals involved in completing the actions required to bring this matter to a successful completion.

15    Also, in the interval between when the incident in 2007 occurred and that which is the subject of these proceedings occurred, the Chief of Defence Force commissioned a review of the defence force cadets, in other words, each branch of the cadet services. The Chief of Defence Force chose a panel with a very particular set of skills to report to him. The review committee was chaired by a former Chief of Army, Lieutenant General (Retired) F. J. Hickling and included two other members, Colonel Woodrofe and Mr Winner.

16    One aspect of the report which the review committee gave to the Chief of Defence Force was an overview of the duty of care: see annexe G. Subject to one particular observation, the overview found in annexe G in respect of the duty of care is an accurate summary of obligations which fall on the Commonwealth of Australia, through the Defence Force, in respect of the fostering of the various cadet organisations. Paragraph G.1.2 makes reference to the general duty of care provisions in the Workplace Health and Safety Act 1995 (Qld) (Workplace Health and Safety Act). What then follows is a summary of the reasonable practicability test found in that legislation.

17    It would have been, for reasons that I will state shortly, correct to have referred to the Occupational Health and Safety Act, rather than to the Workplace Health and Safety Act. The former is the governing Commonwealth legislation. The latter is a State Act, which might otherwise have had application, but does not. There is no difference in substance between the reasonable practicability test found in the State-based legislation and that found in the Occupational Health and Safety Act. That legislation applies to the Commonwealth because of the way in which the definition of employer is cast in s 5. It also has a particular application to the Commonwealth in relation to cadets by virtue of a declaration made by the Minister pursuant to s 9(5) of that act. By that medium, cadets fall within the definition of employee.

18    It should not be thought, though, that there are particular burdens cast on the Commonwealth via that declaration that are otherwise unknown in our law. Unquestionably, the training activities in which Cadet Huestis was engaged at Canungra gave rise in any event to a common law duty of care: see Groves v Commonwealth (1982) 150 CLR 113.

19    Further, at common law, accident prevention is unquestionably one of the modern responsibilities of an employer: see McLean v Tedman (1984) 155 CLR 306 at 313 (McLean v Tedman). In that case, at page 313, Mason, Wilson, Brennan, and Dawson JJ observed that the:

…employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system.

20    What the ministerial declaration does is to subject the Commonwealth, in respect of cadets, to responsibilities which are in addition to those which fall, in any event, on the Commonwealth at common law in respect of cadet training activities. At a practical level, there is probably no great difference in terms of steps necessary to discharge common law duties and those, at least in this case, necessary to discharge duties that fall under the Occupational Health and Safety Act.

21    Those duties, materially, are to be found in section 16 of the Occupational Health and Safety Act. The overarching responsibility is found in s 16(1), which is that an employer must take all reasonably practicable steps to protect the health and safety at work of the employer’s employees. Subsection 16 (2) then makes more detailed provision without limiting that general duty, in respect of particular duties that fall on an employer.

22    That the Commonwealth was under an obligation to provide a reasonably safe environment in respect of cadet training, is the subject of express acknowledgement in the response by the Commonwealth to the cadet review committee report. One sees, within that, in terms of the response to the purpose and goals of the Australian Defence Force Cadets, an acknowledgement that the contribution the cadet schemes make to the social development of cadets is to be achieved by “providing a supportive and safe environment”.

23    In relation to cadets, the Commonwealth stands in a position of in loco parentis. The age range for eligibility for cadet service is such that it embraces those who are, in the eyes of the law, children. The age range commences, as one sees from the Cadet Forces Regulations, at age 12, and concludes just prior to the attainment of age 20. There are, necessarily thus, many who serve in the cadets who are minors.

24    There are two particular failures that are evident in this case on the evidence. The first is a failure to translate into the then prevailing record keeping system the declaration made by Cadet Huestis’ parents as to his allergy. The second is a failure notwithstanding the recognition, happily as it turned out, by a particular officer of cadets of that allergy, not fully to translate that knowledge through the chain of command so as to ensure that Cadet Huestis was not issued with a harmful meal.

25    It would be quite wrong, in my opinion, to categorise what occurred in September 2009 as a flagrant disregard of workplace health and safety responsibilities, or even as a wilful disregard. It is abundantly clear that, at an organisational level, the Commonwealth took to heart the terrible event in 2007 and deliberately reviewed and created policies to address a particular health challenge presented by a wider recruitment base. What I am not convinced of, on the facts, is that completely through the chain of command the risk that was presented by allergic reaction was assimilated and particular procedures then adopted in the field to translate that policy reaction into invariable reality.

26    I have no doubt that the policy was partially implemented, partially in the sense that it is quite apparent that particular meals designed for those cadets who had particular allergies were prepared. What seems to have occurred, though, is that even though, happily, the transcription error was addressed through knowledge via other means of Cadet Huestis’ allergy, there was not a complete translation through the chain of command of that knowledge, in a way that ensured an individually specific meal was issued to Cadet Huestis.

27    In Comcare v Commonwealth of Australia, North J makes reference to what he apprehends to be an element of absurdity that attends an application of legislation to the Commonwealth, in circumstances where any pecuniary penalty imposed is payable to the Commonwealth. Whilst as a matter of first impression that is, with respect, a feature, I do not on reflection share the view that one ought to regard such an operation of the legislation as an absurdity. It seems to me that in making and maintaining the Ministerial applicability declaration, what the executive government has done is to make a deliberate policy value judgment that the culture of safety in the workplace sought to be promoted by the Parliament by the Occupational Health and Safety Act should permeate cadet training. The Minister has, as a matter of deliberate judgment, decided not just to leave matters to the common law, but rather to have cadets and those responsible for their training focused upon health and safety in the same way as employers. In so doing, it may very well be that the Minister is manifesting the modern responsibility referred to by the High Court in McLean v Tedman in respect of accident prevention.

28    Submissions were made as to whether or not there was evident a systemic failure on the facts as agreed. In that regard, reference was made to Director of Public Prosecutions v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557. The Commonwealth’s submission was that, unlike in that case, here there was not in place a system which had, as its very feature in the workplace, the effect of presenting a threat to employees. At a general level, I accept that submission. By a general level I mean it is apparent from the policy which is set out at para 8 of the agreed statement of facts that there was a recognition at a policy level of a need to address individual requirements in respect of, materially, diet. Where there does, though, appear to have been a failure is, as I have already observed, in the translation of that policy into practice in this case. Again, the labelling of meals with a "V" or "vego" is not in itself something necessarily productive of the adverse outcome that occurred here. It is, though, if it is not accompanied by a permeation through the chain of command of a need to ensure that meals thus marked are delivered to particular cadets. That is not what happened here.

29    In Millar v Bornholt (2009) 177 FCR 67, I had occasion to consider the redress of grievance system within the Australian Defence Force and the history of that system and its interrelationship with the military discipline system. In the course of so doing, I made reference at para 31 to an aspect of officer training within the Australian Defence Force. I there stated:

In our Army and in the armies of each of these countries [referring to the United Kingdom, Canada and New Zealand] the right of redress gives formal recognition to an ethos that has sought to be instilled into officer cadets at their military colleges, academies and other officer cadet training units with respect to the obligation for fair treatment and concern for the welfare of subordinates that the holder of a Queen's Commission assumes in respect of those under his or her command. That obligation was definitively expressed by Field Marshal Sir Philip Walhouse Chetwode, then Commander and Chief of the Indian Army, in an address delivered at the formal inauguration of the Indian Military Academy in 1932:

“The safety, honour and welfare of your country come first, always and every time. The honour, welfare and comfort of the men you command comes next. Your own ease, comfort and safety come last, always and every time.”

30    Officers of Cadets do not hold the Queen's Commission. They hold a particular appointment pursuant to the Cadet Forces Regulations. Nonetheless, the sentiments or the ethos that reposes in the passage which I have quoted is, in my respectful opinion, an ethos or sentiment which attends the holding of an appointment in the Cadet Forces. The welfare of cadets is a singular responsibility of officers and NCOs of cadets. One reason why our national honours system makes provision for a medal in respect of long service is to recognise that very singular responsibility which a volunteer assumes. It is an important national responsibility.

31    There is no material difference in relation to cadets as far as welfare is concerned. If anything, it is a heightened responsibility, because one is dealing not with adults but, to a very large extent, with infants. Here, it is a particular concern to me that I do not have any evidence of the tendering, by or on behalf of the Commonwealth, of an apology to Cadet Huestis and his parents.

32    I have the benefit of a victim impact statement, so called, prepared in the form of a statutory declaration by Cadet Huestis’ father. As it happens, his father is someone who in his daily occupation apparently exercises managerial responsibilities in respect of workplace health and safety in the civilian arena. Certain parts of that statement do go beyond what one might, having regard to Collier J’s judgment in Comcare v John Holland Pty Ltd [2009] FCA 1196, regard as the province of a victim impact statement. Unlike, for example, s 168B of the Workplace Health and Safety Act, the Occupational Health and Safety Act does not, in respect of civil penalty proceedings, make express provision for a victim impact statement. It was, though, common ground that such a statement was a relevant consideration. With that particular position, I respectfully agree.

33    As I have mentioned, some parts of the tendered statement go beyond the impact on the victim and include, for example, an expression of opinion on the subject of workplace health and safety by Mr Huestis. It is important to recall that these are public proceedings instituted in the public interest by a public agency, Comcare. There is no element of private vengeance, as it were, which attends the proceeding. The purpose of a victim impact statement is to make apparent to a court charged with the duty of considering penalty, the subjective view of a victim, and reasonably, in my opinion, and relevantly in the case of an infant, the impact on the parents, but nothing more or nothing higher than that.

34    For that reason, I expressed the view in the course of submissions, to which I adhere, that the parts of the statutory declaration to which the Commonwealth took objection are not relevant. That nonetheless leaves a very considerable portion which includes within it a statement as to Cadet Huestis being, before the incident, a motivated teenager focused on a dream of a career in the military. After the incident, Cadet Huestis refused to attend army cadet activities for several months, and when he did return he felt singled out. Some aspects, one might apprehend, of that singling out were necessary. Indeed, the fact that he wasn't singled out in respect of a meal is the reason which lies behind these proceedings. Nonetheless, it is apparent from the incident that there has been an unfortunate effect in terms of his self-esteem, focus on school work and approach to a need to maintain fitness. That to me makes it all the more unfortunate, to say the least, that I do not have evidence of the proffering of an apology on behalf of the Commonwealth to Cadet Huestis and his parents. That seems to me to be at odds with the Chetwode code to which I have made reference in respect of the behaviour expected of officers in circumstances such as these. I take that into account in relation to penalty.

35    The submissions on behalf of the Commonwealth also put that the incident should be characterised in conformity with Director of Public Prosecutions v Yarra Valley Water Ltd (2006) 159 IR 395. In particular reference was made to para 44 where King AJA stated:

It is obvious that the foreseeable and objective consequences must be taken into account, as that is a factor that assists in determining the potential seriousness of the case. It is equally obvious, in my view, that if there is a blatant disregard of known dangers, the level of seriousness of the offence may escalate quite significantly.

The point of this submission, as I understood it, was that here there was not a blatant disregard. Again, as I have mentioned, in terms of a general policy response to the 2007 incident, it is quite apparent that there was no blatant disregard by the Commonwealth; quite the reverse. The concern I have though is that there was not a complete translation through the chain of command of an appreciation of the risk that was presented. I well accept that there was but a human error in transcription of the parental declaration. That of course has a seriousness about it, but what particularly concerns me is that alarm bells did not ring all the way through the chain of command once it was separately appreciated that Cadet Huestis had an allergy.

36    As to general principles which attend the imposition of penalty, there was agreement between the parties that those principles were helpfully gathered by Madgwick J in Comcare v Commonwealth (2007) 163 FCR 207; a case which has come to be known as “Trooper Lawrence’s case”, I respectfully agree with that position. His Honour gathers there a very helpful list indeed, at para 120, of considerations that are pertinent in relation to the imposition of penalty. It also seems to me that, at a more general level, considerations which have guided the Court in relation to other jurisdictions where civil penalties fall for consideration can also be of assistance. I refer, in this regard, to the considerations which I derived from earlier authority in Australian Communications and Media Australia v Mobilegate Ltd (No 4) (2009) 180 FCR 467 at [28].

37    In terms of the considerations described by Madgwick J, his Honour makes reference to a need for the penalty to be such as to compel attention to occupational health and safety generally and to it being a significant aggravating factor that a risk of injury was foreseeable. Each of those I regard as pertinent considerations in this case. A countervailing factor is the timely acknowledgement of liability made by the Commonwealth. That evidences, I am quite sure, a recognition within the Army’s chain of command of responsibility in a timely way. That makes it all the more unfortunate that that recognition was not accompanied by an apology to the cadet concerned and to this parents.

38    There was much debate in submissions before me as to whether there was evidence of a systemic failure. Again, at a general level, I am quite certain that there was not a systemic failure. There were policies in place designed to address this very contingency. There was, though, a type of systemic failure in terms of the translation of those policies into reality on the ground. It is for that reason that I do not accept that a penalty towards the lower end of the range is appropriate. There is a need in this case, in my opinion, for the penalty to be such as to draw attention within the positions of supervisory responsibility for cadets, be they army, navy or air force, to the need to ensure the translation through the chain of command of individually specific outcomes designed to address individually declared conditions. That is a very particular responsibility where the risk involved carries with it a potentially severe health outcome for a cadet.

39    It was not put on behalf of either party that there was a pattern of offending such as gave rise to a discernible penalty range. I agree. Neither is there any binding authority at appellate level in relation to penalty. Rather, this is a case where penalty must be imposed against the background of a risk of this kind already having been demonstrated in the clearest and saddest possible way to the Commonwealth through the death earlier of a cadet from just such an allergic reaction. It is for that reason that I regard the case as a serious one.

40    In imposing penalty I expressly take into account that the Commonwealth did deliberately and genuinely, I am quite sure, address that earlier incident in terms of policy development in conjunction with Comcare. What did not occur though was a complete translation of that well intentioned policy culturally all the way through those having responsibility for cadets.

41    I also have the benefit of evidence from Colonel Davies of measures which have been taken since which are obviously designed to, and in which one might have every confidence, if implemented, that they will, achieve a reduction of this risk, if not its elimination. I am not, therefore, imposing penalty on the basis of a need to remind those in the Commonwealth of a need to address, at a general policy level, for measures to eliminate or reduce this risk. Rather, the purpose of imposition of penalty in this case, as I see it, is to serve as a reminder of the need to translate apt policy into action on the ground in individual cases. For that reason it seems to me that the appropriate penalty to impose is a pecuniary penalty of $150,000. In imposing that particular penalty I have expressly taken into account, as a discounting factor, the timely plea that the Commonwealth has voiced.

42    I also propose to make declarations in the terms that have been proposed by the applicant. It is unnecessary in this case to consider the interaction between the power to make declarations in the Federal Court of Australia Act 1976 (Cth), which is discretionary, and the apparently imperative language found in Sch 2 to the Occupation Health and Safety Act. The case is one where there is a strong public interest such as would, in any event in the exercise of discretion, require, in my opinion, the making of declarations.

43    As to costs, I have had the benefit of submissions from counsel, but not counsel who practise normally from chambers within Queensland. It is not to voice any disrespect for the assistance which was provided by counsel for each side, which was able, to make the observation that the costs ought not to include expenses associated with travel. Indeed, as I understood it, that was not a position in the end pressed on behalf of Comcare after I raised it.

44     The further order, will be that payment of the pecuniary penalty is to be made by the respondent not later than 30 September 2011.

Associate:

Dated:    6 September 2011

SCHEDULE

STATEMENT OF AGREED FACTS

1.    This Statement of Agreed Facts has been prepared in accordance with Order 2 of the Orders of Justice Logan dated 5 August 2011.

Investigation

2.    The incident on 24 September 2009 that gives rise to this proceeding was the subject of an investigation by Comcare investigator Tomos Reaburn. Investigator Reaburn prepared a report of his investigation pursuant to s. 53 of the Occupational Health and Safety Act 1991 (Cth) (the IV Report).

3.    The incident was also the subject of an internal investigation by the Respondent. A report of that investigation dated 4 October 2009 (the Routine Inquiry Report) was provided to the Applicant on 2 November 2009.

4.    This document has been prepared by reference to the IV Report and the Routine Inquiry Report. References to attachments are references to the attachments to the IV Report.

Background

5.    On 18 July 2008, the Respondent published a policy document entitled ‘The Management of Health Conditions During Cadet Activities’ (the Policy). The Policy outlines four ‘key principles’ relevant to the management of health conditions (paragraph 24.5 of the Policy).

6.    The second of those principles concerns the provision to Australian Army Cadets (AAC) of information about relevant health conditions by parents of cadets. According to the Policy, where such information discloses a health condition, the parents, the cadet “and relevant Cadet staff must meet to discuss the medical documentation provided, share information and clarify expectations and responsibilities. The outcomes of this meeting must be recorded in the form of an AMP (Action Management Plan).”

7.    Paragraph 24.15 of the Policy lists examples of the health conditions to be addressed in an AMP. One of the health conditions referred to in the Policy is “allergies”.

8.    Annexure B to the Policy is entitled ‘Health Condition Catering Requirements’. Paragraph 11 of Annexure B is in the following terms:

Cadet staff responsible for the direct distribution of food stuffs to individuals are to:

(a)    be provided with a list of members with known food allergies; and

(b)    ensure that members with identified food allergies are not issued with food stuffs containing those allergens.

9.    On 18 July 2009, Lieutenant Colonel Titcume, Commander South Queensland AAC, promulgated a ‘General Instruction’ detailing administrative arrangements for the South Queensland Australian Army Cadet Brigade Annual Camp 2009.

10.    Part of the arrangement involved a camp for Tier 1 and Tier 2 cadets. This camp was to run from 19 September 2009 to 26 September 2009 (the Camp).

11.    A Tier 1 cadet is one who has completed recruit training but has been a cadet for 12 months or less. A tier 2 cadet has completed 12 months or more in the AAC.

12.    According to the General Instructions, the Camp was to utilise a database known as the SARAH database. All participating cadets were to be recorded on the database, as well as information about their medication, dietary requirements, allergies and medical restrictions. This information was to be recorded by 12 September 2009.

13.    Also on 18 July 2009, Lieutenant Colonel Titcume published the ‘Joining Instruction’ for the Camp (the Joining Instruction Document). Under the terms of the Joining Instruction Document, parents of attending cadets were required to “advise of any potential allergies for Cadets attending Camp by completing all sections of annex A, including the Action Management Plan (AMP)”.

14.    On 7 September 2009, Lieutenant Colonel Titcume published the ‘Standing Orders’ for the Camp (the Standing Orders). Paragraph 6.7 of the Standing Orders required the publication of an “overarching risk management plan” for the Camp.

15.    Paragraphs 8.2-8.4 of the Standing Orders address health conditions and allergies as follows:

8.2    In accordance with the reference, comprehensive and detailed information on Cadet allergies is required. Parents are to be reminded via the specific Annual Camp Joining Instruction that it is their responsibility to advise of any potential allergies for Cadets attending camp. They are to complete all details in the relevant annex to the specific Annual Camp Joining Instruction. Particular attention needs to be paid to the Action Management Plan (AMP).

8.3    If any of this mandatory documentation is incomplete or not signed by the Parent/Guardian then the cadet will not be permitted to attend Annual Camp.

8.4    The Australian Defence Force (ADF) is unable to provide a severe food allergy free environment (such as from peanuts) in relation to the consumption of food during activities. Such a risk may be life threatening for people who suffer from a severe food allergy. Parents may consider it is in their child’s best interest not to allow participation of their child in the proposed activity. In the event that the child is allowed to attend a catered cadet activity, the parents may choose to provide, at their own expense, sufficient food to cover the duration of the activity.

16.    On 7 September 2009, the AAC promulgated a ‘Risk Management Plan’ for the Camp (the RMP). The RMP set out certain risks associated with the Camp and identified control measure to respond to the identified risks.

17.    One of the risks identified in the RMP was ‘Participant has an allergic reaction to food/foodstuffs’. The specified control measures to address this risk included:

•    Anyone with dietary requirements are managed [in accordance with] ADFC health conditions policy; and

•    Participants who have a food allergy are not provided with foods containing the allergen.

Timothy Huestis

18.    Timothy was born on 13 May 1994. When he attended the Camp in September 2009, he was 15 years of age.

19.    Timothy was enrolled as a cadet in the AAC on 15 July 2007. In the ‘Cadet Allergy Proforma’ attached to the enrolment form, his parents advised that Timothy “can have skin reaction to Peanuts and Mangoes”.

20.    As at September 2009, Timothy was a tier 2 cadet. He was a member of Alpha (A) Company.

21.    On 22 July 2009, the Joining Instruction Document for the Camp was sent to Timothy’s parents. They were asked to complete the enclosed medical forms and return them to Timothy’s unit.

22.    Timothy’s mother, Francine Huestis, attended an information night prior to the Camp. At the information night, Ms Huestis spoke to an unidentified female AAC officer and discussed Timothy’s peanut allergy. At no time prior to the Camp, were Timothy’s parents contacted by AAC to discuss Timothy’s allergy.

23.    On 31 August 2009, Timothy’s mother completed the required AAC Health/Medical Statement. In it, she advised that Timothy suffered from asthma and was allergic to peanuts.

24.    On 7 September 2009, a Revised AMP in relation to the management of Timothy’s peanut allergy was completed by Timothy’s parents and family doctor and provided to the Brigade. It identified his medical condition as ‘peanut allergy’, included a photo of Timothy and advised that his dietary requirement was “no food with peanuts”.

25.    The Huestis family provided the AAC with all of the medical information required of them in the Joining Instruction Document.

Catering Arrangements at the Camp

26.    The Camp was to be held at the Kokoda Barracks, Canungra, Queensland (the Barracks). Leanne Graham was the Hospitality and Services Manager at the Barracks. She told the investigator that she was employed by “Spotless”, a contractor to the Respondent.

27.    On 30 July 2009, Ms Graham was provided by Captain Byron John of the AAC with a copy of the ADFC policy on the ‘Management of Health Conditions for Cadet Personnel’. She was advised by Captain John that she would be contacted by Captain Carolyn Moore of the AAC in relation to “any further policies and procedures on managing allergies”. Captain Moore was the Formation Safety Advisor with the AAC. She had overall responsibility for safety at the Camp. Ms Graham was not contacted by Captain Moore prior to the commencement of the Camp and in fact did not meet Captain Moore until after the incident on 24 September 2009.

28.    Approximately three to four days before the Camp commenced, Ms Graham approached Major Adams of the AAC to confirm if any of the attending cadets had food allergies. Major Adams told her that “a couple of cadets did”. Ms Graham said that she should talk to the kitchen staff and that cadet staff should identify which cadets had allergies and approach the kitchen staff. She was not provided with any paperwork listing the names of the relevant cadets or their allergies. When the cadets began the Camp, Ms Graham confirmed with the kitchen staff that they had been approached by cadet staff about allergies. They stated that they had identified two cadets, one with a peanut allergy and one with a tomato allergy. The Head Chef kept a diary of what special meals needed to be created on each day, depending on the information received from cadet staff.

The Camp

29.    At the Camp, the Officer in Charge (OIC) of A Company was Captain Geoffrey Perry (OIC Perry). OIC Perry was an Officer of Cadets who was paid by the Respondent for his time working with cadets. He had been a volunteer with AAC since 1993 and was a serving member of the Army between 1993 and 2003.

30.    In a statement dated 4 February 2010, OIC Perry said that, as at September 2009, he had received no formal training from AAC “in relation to managing cadets with allergies or anaphylaxis” although he states that he had a “blue card” and had received first aid training which “dealt with being aware of symptoms of allergic reactions and general awareness” and was aware of posters on the wall of cadet headquarters about allergies. In accordance with AAC policy, OIC Perry was first-aid qualified and this included management of casualties with allergic reactions including anaphylaxis.

31.    OIC Perry told investigator Reaburn that “it was the responsibility of 2LT Bob Lew to manage medication, the allergy list and action management plans of cadets in A company”. 2LT Lewis was to assist OIC Perry in the management of A Company at the Camp. 2LT Lewis had been trained through the cadet unit and had a “blue card”, a current “senior first aid certificate” and was a qualified Workplace Health and Safety Officer. In this statement dated 10 February 2010, 2LT Lewis states that “All staff had to complete online anaphylactic training before the end of December 2009, which I have done.”

32.    In this statement, 2LT Lewis said that he recalled being informed “that an allergy register would be provided by tier headquarters, Canungra”. He said that this register “was not received until mid way through the camp”.

33.    The allergy register for the Camp was provided to the investigator. Notwithstanding the provision by his parents of the relevant health information about his peanut allergy, Timothy Huestis is not recorded on that register.

34.    On the afternoon of their arrival, on 19 September 2009, cadets were given a briefing by the AAC company staff (including OIC Perry and 2LT Lewis) which included heat policy, anaphylactic shock, code of ethical behaviour, environmental policy and medications policy. On the night of 22 September 2009 (three days into the Camp), 2LT Lewis was issued with ration packs to distribute to cadets for them to eat while on a two day field exercise. He asked the cadets if any of them had an allergy, to “double check”. Timothy responded that he had a peanut allergy and was supplied ration packs with that did not contain peanut. This was the first time that those in command of A Company became aware of Timothy’s allergy. 2LT Lewis advised Warrant Officer Andrew Hall (WO1 Hall) who was in charge of the exercise that he had a cadet with a peanut allergy. WO1 Hall advised tier head quarters by radio.

24 September 2009

35.    Kelvin Martin was the chef’s supervisor in the Barrack’s mess. He and his staff provided 104 ‘hot box meals’ for the cadets to eat for lunch on 24 September 2009. Such a meal is similar to those provided on aeroplane: a silver container with a white cardboard lid.

36.    There was a lamb casserole with rice meal and a pork ribs with a fruity peanut based satay cause. Nothing on these boxes described their contents.

37.    On approximately 22 September 2009, Mr Martin had been advised by the tier 2 quartermaster, Staff Sergeant Vince Atley (SSGT Atley), that two of the cadets had allergies: one to peanuts and one to tomatoes. (In a statement to the internal investigation, Mr Atley said that he ordered the meals “at least a day before [they] were needed”). To cater for these cadets, the kitchen had prepared two vegetarian meals consisting of tofu stir-fry with soy sauce. These meals did not contain peanuts or tomatoes. They were labelled with the word ‘vego’ and placed in a separate insulated container marked with a ‘V’. Kitchen staff identified the allergen-free meals and the marked used to SSGT Atley.

38.    On 24 September 2009, A Company attended an engineering stand run by AAC Captain Boddington and WO1 Hall. Upon arrival, the stand staff asked the company if any of the Cadets had allergies. The company staff identified two cadets with allergies. During the stand safety brief, the cadets were identified and Captain Boddington instructed them to report to WO1 Hall for meals. Captain Boddington asserts that the company staff were present during the safety brief.

39.    On 24 September 2009, the meals were collected by SSGT Atley. He took them to the engineering stand where the cadets were building bridges and a flying fox. Timothy was with these cadets. SSGT Atley took the meals to the stand and identified the allergen-free meals to the company staff prior to departing.

40.    According to OIC Perry, there was no set procedure for the allocation of meals. He said that the “normal process” was that the OIC or whoever is available organises cadets to hand out meals.

41.    The meals were distributed by OIC Perry and 2LT Lewis. Timothy had told 2LT Lewis two days earlier that he was allergic to peanuts. Mr Lewis described the process by which the meals were handed out:

We called out for the vegetarians to come forward to collect their meals but nobody came up. We then proceeded to hand out the other meals. We had a few left over. The cadet staff received their meals last. Everyone had finished eating when cadet Huestis came up to me and complained of chest pains and shortness of breath.

I sat him against a tree in a reclining position and put a cool towel around his neck. I asked him what he had for lunch and he replied Pork. At this stage we were not aware what the pork meal contained but through elimination we treated it as a satay as we knew he had a peanut allergy.

42.    OIC Perry’s account is somewhat different:

There were about three or four TV meals marked ‘VEGO’. I called out for cadets with allergies to come forward approximately three or four times. Cadet Huestis did not come forward. There was no way of me knowing Cadet Huestis had any allergies.

43.    When he handed out the meals to the cadets, OIC Perry had not seen Timothy’s AMP; nor had he seen any of the information provided by Timothy’s family about Timothy’s dietary requirements. He had also apparently not been told about Timothy’s allergy by 2LT Lewis.

44.    Contrary to the requirement of the Policy described at paragraph 8 above, OIC Perry had not been “provided with a list of members with know food allergies”. He was therefore unable to “ensure that members with identified food allergies [were] not issued with food stuffs containing those allergens”.

45.    According Captain Boddington, neither of the ‘special meals’ were collected by the cadets. He found them to both unopened after lunch. He asked the cadets with allergies why did not collect these meals as he had instructed during the stand safety brief and they replied that they just lined up with everyone else and took what was handed to them.

46.    Timothy was interviewed by telephone as part of the Respondent’s internal investigation. The following appears in the record of that interview:

Q. Why did you not come forward when called to collect your special meal?

A. I was not aware that there was a separate set of meals as I was with a separate group of cadets finishing the construction of our bridge. When we arrived for lunch we just lined up for our meal and were handed our meal from CAPT (AAC) Perry and did not know what it was.

Q. Why did you not question whether the meals you were handed was allergy free?

A. I did not question the ACS on whether the meal [w]as an allergy free meal because I thought CAPT (AAC) Perry knew of my peanut allergy from the conversation the night before. I had spoken to 2LT (AAC) Lewis about my peanut allergy and thought he would have told CAPT (AAC) Perry.

The Aftermath

47.    Contrary to AAC requirements, Timothy did not have a copy of his AMP or his medication with him. He explained that this was because he was excited about the activity and he forgot to take them with him.

48.    No person in command checked that Timothy was carrying his AMP and medication.

49.    An ambulance was called and Timothy was transported to Gold Coast Hospital. He was accompanied in the ambulance by Captain Leanne Morris.

50.    Upon being informed of the incident, Administration Officer Major Stark retrieved Timothy’s medical forms from copies held at the Tier 2 Head Quarters and saw that he had a peanut allergy and that he should be treated with Phenergan. She communicated this to Captain Morris while the ambulance was en route.

51.    Timothy was treated at hospital and released to the care of his family later on the evening of 24 September 2009.

Changed Procedures for Managing Cadets with Allergies

52.    OIC Perry described the subsequent changes to procedures:

Since the incident, I am aware of some changes to cadet procedures. This includes the name and details of cadets with allergies being list [sic.] on specific meals. All cadet staff now carry a photo album with pictures of cadets with allergies and their action management plans. I have also undertaken formal training in managing cadets with allergies and anaphylaxis.

[Emphasis in original and Footnotes omitted]