FEDERAL COURT OF AUSTRALIA

Comcare v Post Logistics Australasia Pty Limited [2011] FCA 1422

THE COURT ORDERS THAT:

1.    On 31 March 2008, Post Logistics Australasia Pty Limited contravened clause 2(1) of Schedule 2, Part 1 of the Occupational Health and Safety Act 1991 (Cth) by reason of it having breached section 16(1) of the said Act in that:

(a)    On 31 March 2008, its employee Ms Roslyn Mary Borg (née Piscopo) was walking alongside a forklift being operated by its contractor Mr Kevin Cox and was approximately a metre away from the forklift as it was being operated;

(b)    At that time, Mr Cox was assisting Ms Borg by using the forklift to move a pallet to the ground as it was too high for Ms Borg to reach;

(c)    As Mr Cox operated the forklift to put the pallet down on the ground, the forklift ran over Ms Borg’s right foot causing her small toe on that foot to be fractured.

2.    In this regard Post Logistics Australasia Pty Limited breached its duty under section 16(1) of the Occupational Health and Safety Act 1991 (Cth) to take all reasonably practical steps to protect the health and safety at work of its employee Ms Borg in that it:

(a)    failed to provide adequate training or instruction to Mr Cox and Ms Borg to ensure that they did not engage in the conduct set out above.

(b)    failed to ensure that there was an adequate traffic management system in place to prevent or reduce the risk of Ms Borg coming into contact with a moving forklift.

3.    The Commonwealth entity to which the conduct related is Post Logistics Australasia Pty Limited.

4.    The respondent is to pay to the Commonwealth of Australia within 14 days a pecuniary penalty of $80,000 for the aforesaid breach.

5.    The respondent is to pay the applicant’s costs, such costs to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1    This judgment principally concerns the penalty which should be imposed on the respondent (“Post Logistics”) for admitted breach of s 16 of the Occupational Health and Safety Act 1991 (Cth) (“the OHS Act”). The parties agreed that appropriate declarations should also be made.

2    It was alleged, and admitted, that Post Logistics had breached both s 16(1) and s 16(4) of the OHS Act. That admitted position is not entirely satisfactory, for reasons which I will explain. I have had the advantage of focussed, well written and presented submissions from counsel for both parties. Prior to the hearing, after the respondent elected not to put in question its liability, the parties filed an agreed statement of facts which provided a useful and satisfactory foundation from which to approach the questions which require determination. The respondent filed some additional evidence which provided a further useful resource upon which both parties drew for additional detail in their submissions.

3    Section 16(1) and (4) of the OHS Act provide:

16(1)    An employer must take all reasonably practicable steps to protect the health and safety at work of the employer’s employees.

…

(4)    The obligations of an employer in respect of the employer’s employees that are set out in subsections (1) and (2) apply also in respect of persons who are contractors of that employer but only in relation to:

(a)    matters over which the employer has control; or

(b)    matters over which the employer would have had control but for an express provision in an agreement made by the employer with such a contractor to the contrary, being matters over which the employer would, in the circumstances, usually be expected to have had control.

4    It may be seen that s 16(4) extends the obligation in s 16(1) to persons who are not employees, but the obligation, in such a case, remains that stated in s 16(1). The intended existence of a primary obligation identified in this way (i.e. by s 16(1) and not additionally by s 16(4)) is confirmed by Schedule 2, clause 2 of the OHS Act which states the provisions in respect of which a declaration of contravention might be made (relevantly here, s 16(1) but not s 16(4)), which declaration serves also as the foundation for a pecuniary penalty order (see Schedule 2, clause 4). For this and other reasons, some amendment to the declaration otherwise agreed between the parties is required, to which subject I will return a little later.

5    The obligation to protect health and safety at work imposed by the OHS Act, on those to whom the OHS Act applies, is a very important one. It does not just fall on employers (s 16). It falls equally on employees (s 21). Duties of a similar kind fall on manufacturers (s 18), suppliers of plant and substances (s 19) and persons erecting or installing plant (s 20).

6    The maximum civil penalty for a breach of those provisions is, in the case of a body corporate, 2,200 penalty units (at present a penalty unit is $110) or $242,000. The OHS Act also permits (but does not oblige) criminal proceedings to be initiated where a breach of the OHS Act results in death or serious bodily harm, or a breach of s 16(1) of the OHS Act exposes an employee to a substantial risk of death or serious bodily harm, if the person charged was negligent or reckless. In such cases the maximum penalties are 4,500 penalty units ($495,000) and 3,000 penalty units ($330,000) respectively. Proof of a criminal charge of this kind requires proof of factual matters beyond reasonable doubt (Evidence Act 1995 (Cth), s 141). Although the legislative emphasis on the importance of workplace health and safety given by the creation of criminal offences in this way is unmistakeable, for present purposes attention must be given to the fact that the present proceedings are proceedings for a civil penalty. They are not criminal proceedings. The rules of evidence and procedure in civil cases are to be applied with respect to any declaration sought and any penalty fixed (Schedule 2, clause 8; see also s 140 of the Evidence Act).

7    Another matter should be mentioned at the outset. The standards set by the OHS Act as a whole, and s 16 in particular, should be understood in the context of the stated objects of the OHS Act which include:

(a)    to secure the health, safety and welfare at work of employees of the Commonwealth, of Commonwealth authorities and of non-Commonwealth licensees; and

…

(d)    to promote an occupational environment for such employees at work that is adapted to their needs relating to health and safety; and

    …

(f)    to encourage and assist employers, employees and other persons on whom obligations are imposed under the Act to observe those obligations; …

8    Those objects emphasise that in substantial part the effectiveness of the legislative scheme to foster the standards it imposes is intended to be achieved by raising the level of awareness of employers, employees and others about safety and by encouragement. That is an important matter to bear in mind. Where safety at the workplace has failed, and death or injury has resulted (which is the usual case which comes to a court), it is normally not (perhaps never) the result of any intention that should have happened. That circumstance puts cases involving workplace health and safety in a special position. The essence of the failure in such cases is neglect or inattention, not active misconduct or wilful wrongdoing. The corrective to be administered must encourage and stimulate, rather than simply be designed to prevent, dissuade or punish.

9    The allegations and admissions in the pleadings in the present case arose from an incident on 31 March 2008. Before I explain the incident it is desirable to identify some features of the operation of Post Logistics.

10    From 31 March 2005 Post Logistics was owned by Australia Post, which is established under the Australian Postal Corporation Act 1989 (Cth). Post Logistics conducted a logistics and warehousing business. At the time relevant to this judgment Post Logistics operated 12 warehouses in different parts of Australia. The incident with which I shall deal occurred at the site known as Warehouse 9 at Eastern Creek, New South Wales. Throughout Australia, Post Logistics employed about 440 people and supplemented its own work force with the services of about 110 “contractors” who were individuals whose services were supplied to Post Logistics by labour hire companies, including Landmark Industrial Recruitment Pty Limited (“Landmark”).

11    Some limited photos of Warehouse 9 were tendered. It appeared to be a modern warehouse. Forklift operations were an integral part of the operations. The parties agreed, at the hearing, that daily forklift movements at Warehouse 9 would have been numbered in the hundreds. It is easy enough to extrapolate, from that agreed position, that tens of thousands of movements occurred every year at Warehouse 9, and many more nationally.

12    The two people involved directly in the incident which occurred on 31 March 2008 were Ms Roslyn Borg (née Piscopo) (an employee of Post Logistics) and Mr Kevin Cox (an employee of Landmark). Each was a certified high reach forklift driver. At the time of the incident Ms Borg was manually wrapping cartons with shrink wrap material and Mr Cox was asked by her to use a forklift to assist her by moving a pallet of cartons, too high for her to reach, to the ground. In the course of this movement the forklift ran twice over Ms Borg’s right foot, fracturing her small toe. Ms Borg described the incident as follows:

Just prior to the accident, I was manually wrapping products that were stacked on top of two pallets. The stacking of one pallet on top of another raises up the product so that you do not have to bend down too far to wrap the product. However, on this occasion, the product was too high for me to wrap all the way to the top and I was only able to wrap the product halfway to the top. As a consequence, I asked Mr Cox, who at the time was manually stacking the cartons onto the pallets, to move the pallet with the forklift to the other side of the floor in the middle of where all the stock was.

Mr Cox then got on the forklift and drove the forklift into the area to collect the pallet. He used the tines to pick up the top pallet. As he picked up the pallet, I continued to hold onto the shrink wrap attached to the pallet. Therefore, as Mr Cox drove forward across the pedestrian walkway, I walked along the left hand side of the forklift and he was aware that I was still holding on to the shrink wrap. I was standing more than two metres away from the forklift. The shrink wrap felt tight for me to hold so I know that I was more than two metres away. I then said to Mr Cox words to the effect of: “Can you put the pallet over here on the right hand side?”

I am not exactly sure how it happened but I believe that as Mr Cox went to put the pallet down, he came towards me and turned a little bit to the left. I was still holding the shrink wrap in my hand and walking forward looking straight ahead, but I did not go closer to the forklift. Mr Cox then ran over my right foot and I said to him words to the effect of: “My foot!” Kevin you ran over my foot.” I then went into shock.

After I told Mr Cox that he was on my foot, he moved forward off my foot and put the pallet down immediately. However, Mr Cox then reversed back and ran over my right foot again, as I was still standing in the same position. I believe this is because he was also in shock.

13    Notwithstanding Ms Borg’s evidence that she believed she remained at least two metres from the forklift, the parties agreed that immediately before she was injured she was about one metre from the forklift. That is the factual position which I will accept (see Evidence Act s 191). It is also the position admitted on the pleadings, along with other factual matters. Paragraph 17 of the amended statement of claim (which was admitted by an amended defence) asserted:

17    On 31 March 2008, Ms [Borg] was struck by the Forklift and was injured during the impact at the Site (the Incident).

Particulars

(a)    On 31 March 2008 Mr Cox had been assigned to the Proline work area adjacent to the eastern wall of the Site to assist on the day, in light of the absence of Ms Wilma Randall who was a permanent employee in the Proline area.

(b)    At all material times, both Mr Cox and Ms [Borg] were certified reach truck drivers.

(c)    At approximately 8am on 31 March 2008, Ms [Borg] was in the process of manually wrapping cartons of Proline product with shrink wrapping material. The cartons were on a pallet that was stacked on another pallet. As it was too high for Ms [Borg] to reach all the way to the top of the cartons, she requested Mr Cox to move the top pallet onto the ground with the Forklift so she could finish the wrapping.

(d)    Mr Cox got on the Forklift and used the tines to lift the top pallet.

(e)    Instead of cutting the shrink wrap from the partly wrapped pallet, or placing the shrink wrap roll on top of the cartons, Ms [Borg] rolled out a length of the shrink wrap and continued to hold the shrink wrapping roll that was attached to the pallet and walked alongside the Forklift whilst Mr Cox was maneuvering [sic] it and driving with the pallet.

(f)    Ms [Borg] was standing approximately one metre away from the Forklift being operated by Mr Cox as she walked alongside the Forklift.

(g)    Just as Mr Cox went to put the pallet down with the Forklift, the Forklift ran over Ms [Borg’s] right foot.

(h)    Ms [Borg’s] small toe on her right foot was fractured.

(i)    Ms [Borg] was assisted by first aiders at the Site and subsequently by paramedics, who transported her to hospital.

14    Before I deal with other matters it is, with the benefit of those background facts, convenient to explain a reservation which I have about the agreed position arising from the pleadings, so far as it relates to the nature and extent of the breach of the OHS Act in the present case. The factual limits set out in paragraph 17 of the amended statement of claim are important to bear in mind. They disclose no failure of protection of the health or safety of Mr Cox, or any person other than Ms Borg.

15    The alleged breach of the OHS Act was set out in paragraph 36 of the amended statement of claim, as follows:

36    In or about March 2008 and in particular on 31 March 2008, Post Logistics breached its duty under sections 16(1) and 16(4) of the OH&S Act to take all reasonably practicable steps to protect the health and safety at work of its employee Roslyn Mary [Borg] and its contractor, Kevin Cox, in that it:

(a)    failed to provide adequate training or instruction to Mr Cox so as to ensure that he did not engage in the conduct pleaded at paragraph 17 of this Statement of Claim;

(b)    failed to provide adequate training or instruction to Ms [Borg] so as to ensure that she did not engage in the conduct pleaded at paragraph 17 of this Statement of Claim;

(c)    failed to ensure that there was an adequate traffic management system in place to prevent or reduce the risk of Ms [Borg] coming into contact with a moving forklift; and

(d)    failed to provide adequate supervision to Mr Cox or Ms [Borg] so as to ensure that they did not engage in the conduct pleaded at paragraph 17.

(Emphasis added)

16    The allegation that the health and safety of Mr Cox (in addition to Ms Borg) was not protected should first be noted. Insofar as that allegation is reflected by a reference to s 16(4) of the OHS Act that involves, in my view as I have said, an error about the operation of the OHS Act, but that is of relatively little significance in its own right and is readily corrected. Of more importance is the way that the statement of the alleged breach is particularised. Those particulars serve to limit the scope of the breach charged. Three of the four particularised elements of the alleged breach, (a), (b) and (d), are directly connected with the circumstances leading to the injury to Ms Borg. The fourth, (c), is expressed more generally, but still relates specifically to Ms Borg and unmistakeably to the events on 31 March 2008. Despite the admissions made by Post Logistics I am not satisfied that material facts were pleaded, and admitted, which would justify a finding to the effect that there was a failure to protect the health and safety of Mr Cox. In any event, as I have said, there is no basis under the OHS Act for a finding of a breach of s 16(4). Neither of those difficulties received any attention at the hearing. They have no practical consequence for the amount of a pecuniary penalty. A single penalty was sought. The submissions of the parties concentrated on the risk to Ms Borg. For reasons yet to be explained, I am also not satisfied that there was any relevant failure of supervision. I am not prepared to declare that there was.

17    The parties were, at the hearing, agreed on the terms of an appropriate declaration. Making allowance for the matters I have just mentioned, amending it to reflect those matters and removing some duplication, the declaration would be in the following terms:

1.    On 31 March 2008, Post Logistics Australasia Pty Limited contravened clause 2(1) of Schedule 2, Part 1 of the Occupational Health and Safety Act 1991 (Cth) by reason of it having breached section 16(1) of the said Act in that:

(a)    On 31 March 2008, its employee Ms Roslyn Mary Borg (née Piscopo) was walking alongside a forklift being operated by its contractor Mr Kevin Cox and was approximately a metre away from the forklift as it was being operated;

(b)    At that time, Mr Cox was assisting Ms Borg by using the forklift to move a pallet to the ground as it was too high for Ms Borg to reach;

(c)    As Mr Cox operated the forklift to put the pallet down on the ground, the forklift ran over Ms Borg’s right foot causing her small toe on that foot to be fractured.

2.    In this regard Post Logistics Australasia Pty Limited breached its duty under section 16(1) of the Occupational Health and Safety Act 1991 (Cth) to take all reasonably practical steps to protect the health and safety at work of its employee Ms Borg in that it:

(a)    failed to provide adequate training or instruction to Mr Cox and Ms Borg to ensure that they did not engage in the conduct set out above.

(b)    failed to ensure that there was an adequate traffic management system in place to prevent or reduce the risk of Ms Borg coming into contact with a moving forklift.

3.    The Commonwealth entity to which the conduct related is Post Logistics Australasia Pty Limited.

18    I am satisfied that a declaration in this form is sufficiently specific and is otherwise appropriate.

19    The main issue dividing the parties was the amount of the pecuniary penalty to be ordered. The maximum penalty, in the circumstances of the present case, is fixed at $242,000. The applicant argued that the breach was a “high range” one and deserved a commensurate penalty, not less than $180,000. Post Logistics argued, initially, that the breach was in the low to mid range of seriousness, but accepted at the hearing that it should be regarded as in the mid range, with an appropriate penalty being in the range of $120,000–$140,000. I do not agree with either assessment.

20    Although it is not necessary (at least as a matter of theory) to confine identification of a failure to protect health and safety in a particular case to the circumstances revealed by an identified accident or injury, in a practical sense it is almost always the case that an identified accident or injury provides both the occasion for an investigation leading to proceedings such as the present and also the practical circumstances which illustrate the alleged failure. It is artificial and usually unsatisfactory to decline to test an allegation of a failure to ensure safety against the circumstances of the incident which have led to the proceedings. Those circumstances may not, in a particular case, exhaust the matters to be examined, but if an alleged failure to ensure safety cannot be found in the circumstances of the incident which provokes the accusation, firm ground must be found for nevertheless concluding that a breach has occurred. I find it hard to envisage a case where a proper examination could commence on the basis that the circumstances of the relevant incident were anything but highly significant.

21    Furthermore, as the High Court emphasised in Kirk v Industrial Court (NSW) (2010) 239 CLR 531 (“Kirk”) (although in a different, criminal, context), it must be possible to say what steps should have been taken to avoid the alleged failure. In most cases, that must be tested by reference to the incident in question. It must be possible to show that implementing the suggested steps, which were not taken, would have addressed the failure in a practical, not merely theoretical, sense. Any other approach would be artificial and speculative.

22    Forklift operations at a warehouse where people are also moving about obviously call for management of the movement of both forklifts and pedestrians to avoid contact between them. Obviously also, the consequences of such contact could be very serious, even fatal. On the other hand, people can be expected, normally, to take some care for themselves and each other in the real world. In the warehouse at which Ms Borg was injured there were, I was told, hundreds of forklift movements each day. This appears to have been the first incident at Warehouse 9 leading to proceedings of the present kind although there was evidence of at least two earlier serious incidents at other warehouses.

23    In the present proceedings, although it admitted liability, and that its safety procedures were inadequate in the circumstances, Post Logistics directed most of its attention to rebutting the suggestion that its procedures were wholly ineffective or very seriously inadequate. Speaking very generally for the moment, I do not think the procedures in place at Warehouse 9 on 31 March 2008 were wholly, or very seriously, inadequate even though there are some areas in which shortcomings were admitted.

24    I do not mean in any sense to diminish, much less trivialise, the seriousness of the incident. Although the injury suffered by Ms Borg was relatively low on the scale of potential seriousness (which includes the possibility of death) it was serious enough and no doubt distressing for her. Her lucky escape from more serious injury is not the benchmark for judging the seriousness of the breach admitted by Post Logistics. The parties raised a number of matters in connection with an assessment of the seriousness of that breach. There are two particular matters which I find to be of more significance than others. The first is the fact that clear instructions about the need to always maintain at least a 3 metre “exclusion” zone around any operating forklift, which were said to have been provided as part of normal site induction for both employees and contractors, were not provided to either Ms Borg or Mr Cox. The second is that clearly marked, separate, areas for forklifts and pedestrians were not set out in the ordinary way on the warehouse floor until after the incident. There are some other matters also to be mentioned.

25    As to the first matter, I do not accept that Post Logistics must bear all responsibility for the incident, to the entire exclusion of Ms Borg and Mr Cox. Although an employer may not avoid liability for a failure to protect even careless employees it does not follow that people bear no responsibility to give proper attention to their own safety and those around them. Any other approach seriously diminishes the obvious need for attention to safety by all involved, which is to be treated as a highly practical matter, having regard to its serious consequences, rather than as a matter of theory. However, it is impossible to overlook a failure to provide Ms Borg and Mr Cox in the normal way with clearly expressed, easy to understand, uncompromising instructions about a matter as basic as an “exclusion” zone. Failure to provide those instructions to Ms Borg and Mr Cox is suggestive of a more systemic failure. I am satisfied that this is a matter I can properly take into account in assessing an appropriate penalty.

26    Similarly, the well-established procedure of clearly marking safe areas for pedestrians, and requiring pedestrians not to move outside them, is so easily accomplished in a modern warehouse (as procedures implemented after the incident sufficiently illustrate) and so obvious a visual reminder of the need for separation of forklifts and pedestrians, that there can be little excuse for an organisation like Post Logistics not implementing it earlier.

27    However, the significance of either of these matters must, at the same time, not be overstated. Obviously enough, neither Ms Borg nor Mr Cox intended that she be injured. Nor did anybody else at Post Logistics. Neither measure, although each was clearly practicable and easily achieved, could operate as a guarantee against the injury which occurred even though the parties agreed, and I accept, that they each would have contributed to safety. Ms Borg’s evidence was that she was well aware of the need to stay away from forklifts. Her evidence included the following statement:

I am aware that when someone is using a forklift, you are not allowed to be near it or next to it. This is not only common sense, but I was taught this during my forklift theory when obtaining my forklift licence.

28    The applicant contended also (and Post Logistics admitted) that it would also have been possible and practicable, before the incident on 31 March 2008, to have implemented a procedure involving the use of removable bollards or chains to prevent forklifts entering an area where someone was working. Procedures of this kind were introduced subsequently. It was not clear to me that such a system would have had any probable impact on the incident here, which was not the result of any lack of appreciation by either Ms Borg or Mr Cox of the possible dangers. I accept it would have been a form of reminder of an already obvious danger.

29    On the other hand, I give no weight to the fact that at the exact time that Ms Borg and Mr Cox embarked on their flawed approach to Ms Borg’s shrink wrap task, there was no supervisor present to immediately intervene. It was not suggested that constant supervision of this kind was practical, necessary or even appropriate. Ms Borg and Mr Cox were not children to be constantly and closely watched, and scolded. In the absence of constant, intrusive, surveillance there would obviously be times when a supervisor was not in the immediate vicinity. I bear in mind an admission by Post Logistics that supervision was not fully adequate but there is force in the submission that Post Logistics was certainly not culpable by failing altogether with respect to supervision or, for that matter, in any other suggested respect. Despite the admission, the contention that lack of supervision played, in any practical sense, a part in the incident was speculative. The applicant could not identify a practical step which might have been taken to remedy the alleged lack of supervision which would probably have prevented the incident occurring.

30    The applicant also relied on the fact that, in Comcare v Post Logistics Australasia Pty Ltd [2008] FCA 1987; (2008) 107 ALD 578; (2008) 178 IR 200 (“Comcare v Post Logistics Australasia”), Flick J imposed a penalty of $165,000 on Post Logistics arising from a death involving a forklift at another warehouse, suggesting that this imposed some heightened obligation on Post Logistics, including at Warehouse 9. As the judgment makes clear, that fatality involved horseplay. That is not this case. The fatal injury which occurred in that case did not lead to a higher or different level of responsibility to protect the health and safety of employees at Warehouse 9. Nor did it identify a new measure which should have been taken at Warehouse 9 to achieve that objective. I could not impose a penalty in this case simply because there had been an earlier fatality at a different warehouse arising from different circumstances. As counsel for Post Logistics submitted, I must deal with the present case, and only the present case.

31    I also take into account that, from a time before the incident in question, Post Logistics had initiated a system of daily safety briefings at Warehouse 9. Although it has been admitted that the training and induction given to Ms Borg and Mr Cox was inadequate, and notwithstanding the observations I made earlier about the failure to take obvious and easy steps which might have further reinforced the obvious need for separation between forklift operations and pedestrians, it might not fairly be said that Post Logistics had given no attention to workplace health and safety, nor that it had not taken pro-active steps to address that issue.

32    I am satisfied therefore that there was proper, if admittedly inadequate, attention given to safety at Warehouse 9, that there were frequent reminders about it at the workplace and there was not a total failure of training or of supervision. This is not a case where nothing useful was done; it is a case where it is admitted that not enough was done. The applicant, in my view, has not proved culpability to a high level.

33    On the other hand, I see no reason for a reduction in any penalty otherwise appropriate because, as the evidence showed, Post Logistics has disposed of its warehouse business. The fact that the submission to this effect relied on the premise that no “specific deterrence” was necessary in this case, makes it necessary to explain in a little more detail the foundation for my rejection of it.

34    Fixation of a penalty for breach of the OHS Act (whether admitted or found) stands as a statement by a court of “the seriousness of the offending conduct in all the relevant circumstances” (see Coochey v Commonwealth (2005) 149 FCR 312 at [73]). Obviously, a penalty, even a civil penalty, operates also as a punishment. However, in my view it is inappropriate to draw too freely on concepts from the criminal law, which are related to punishment of crimes, for this purpose.

35    There can be no doubt that it is expected by the legislature that courts will, by their decisions, sufficiently support the legislative scheme in the OHS Act. It is inevitable that, in part, notions of punishment for a breach of the statutory duty are involved, as are notions of culpability, but they are clearly not the only objectives and it is debatable whether they are the most important objectives of the OHS Act. It is a sufficient recognition of such matters (punishment and culpability), in my view, to identify so far as possible the objective seriousness of the failure and to fix a penalty which takes that into account, without becoming unduly distracted by efforts to apply borrowed concepts from the criminal law. An area as important as workplace health and safety should be accompanied by the greatest level of practicality which can be brought to bear on the ultimate task of providing a safe working environment. Nobody sets out to create an unsafe workplace. I entertain great doubt whether concepts of deterrence are appropriate in the context of a case such as the present. What is involved is the necessity to reinforce a positive obligation of protection rather than to emphasise an obligation not to commit a civil wrong. It is unnecessary, in my view, for the Court, when giving effect to the statutory objectives in the OHS Act, or when fixing a punishment for a particular breach, to do so by reference to “deterring” somebody from such a breach. Adoption of a concept such as this from the criminal law risks becoming a ritual incantation deflecting attention from what is a practical issue – namely, how to provide appropriate incentive and encouragement (as well as punishment) to enhance workplace safety.

36    There are other canons of the criminal law sentencing process that are also not readily applied in a practical manner in a case such as the present. The notion that an “early plea of guilty” aids in the administration of justice is less readily applied than in the criminal justice system. So is the notion of “contrition”, which is bound up with the idea that intent is an element of the commission of most criminal offences. Admission of responsibility in the case of a workplace accident is not necessarily a straightforward matter of confessing guilty conduct, much less guilty intent. That is not to say that the Court would have much patience with an irresponsible refusal to admit a failure to comply with obligations to protect safety, or a failure to take prompt remedial action. But matters of that kind may be readily assessed when consideration is given to the overall seriousness of an admitted or proven breach. It is not necessary in cases such as the present, when active intention to breach a duty of protection will usually be absent, to apply formulae which were developed to guide a range of inferior criminal courts in a large variety of matters with a view to ensuring reasonable consistency of sentencing practice.

37    There must also be allowed some room for recognition of positive efforts to enhance safety. Just as a demonstrated failure to protect health and safety, revealed by its manifestation in a particular accident, is not assessed only in the light of an actual injury (particularly where it is fortuitously slight), nor should serious and responsible efforts to enhance safety be overlooked even in the tragic circumstances of a serious injury or death.

38    It is always easier to be wise (and even righteous) after the event. The task of taking a pro-active approach to workplace health and safety should be encouraged at all levels. But that encouragement should foster practical approaches, likely to result in lasting and effective solutions whereby everybody’s awareness of safety is increased, and not merely result in a multiplicity of “audits” and “risk assessments” remote from the workface, or in the production of innumerable written instructions of no practical significance. The test should be what is truly effective to enhance workplace safety and great care must be taken, in my view, not to merely encourage a paper trail designed to appease courts and regulators and provide “evidence” of commitment to workplace safety, as though it was just a formality to be documented as a matter of record.

39    In some cases in this Court agreement has been expressed with the observations by Madgwick J in Comcare v Commonwealth (2007) 163 FCR 207 where (at [120]–[123]) his Honour found useful a list of factors to be taken into account in assessing penalty which he distilled from the approach taken by the Industrial Court of New South Wales in cases under the workplace health and safety legislation in that State. Those NSW cases involved criminal sanctions. The principles developed by the Industrial Court of NSW drew heavily on sentencing principles in criminal cases. I have already expressed my reservations about that approach to cases under the OHS Act.

40    More recently in this Court, general agreement has been expressed with the observations of Flick J in Comcare v Post Logistics Australasia, where his Honour said (at [38]):

38    Care must be taken to ensure that any listing of potentially relevant considerations do not themselves become an impermissible substitute for considering the terms of the legislation in issue or an unnecessary constraint upon a discretion conferred in otherwise unconfined terms. …

41    Cases in which this observation has been endorsed include Comcare v Commonwealth of Australia [2009] FCA 700; (2009) 110 ALD 252; (2009) 257 ALR 462, Comcare v John Holland Rail Pty Ltd [2009] FCA 771; (2009) 188 IR 415 and Comcare v Australian Postal Corporation [2011] FCA 530. I also share those reservations. It will be apparent that my reservations are even more profound, so far as the use of sentencing principles for criminal conduct is concerned. Those reservations extend to the use of principles concerning the imposition of civil penalties under different statutory regimes. As I have already indicated, I see a significant difference between the assessment of culpability for conduct which intentionally or actively breaches a legislative standard and inactivity which is, in the vast majority of cases, only revealed as significant by an accident or incident. As I said earlier, it is important not to be too wise after the event.

42    Imposition of a pecuniary penalty under the OHS Act involves no element of compensation for a person who is injured. The chief importance of a penalty imposed in a case such as the present is to draw attention to the importance of workplace safety in a way which provides a useful stimulus for practical and meaningful efforts and endeavours to enhance it. It is equally important that the reality and dynamic nature of Australian workplaces be taken into account and that the penalties fixed by the Court do not come to be regarded as the product of an empty symbolism which encourages form and formality rather than practicality and substance. It should be possible, in the real world, to test an allegation of a failure to protect health and safety by asking first, whether it can confidently be said that correction of an alleged failure would actually or probably have prevented an accident or incident and second, whether that should reasonably have been appreciated before the accident or incident. That is also the way the matter must be approached as a matter of legal analysis (see e.g. Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249, Kirk at [16]). As the High Court said in Kirk (at [34]):

34    … If a risk was or is present, the question is – what action on the part of the employer was or is required to address it? …

43    Answers to questions of this kind are not normally to be found in generalised assertions about more training, closer supervision or more paperwork. Any suggestion along those lines must descend to sufficient particularity to identify concrete initiatives that could and should have been taken. That, after all, is the problem and obligation which confronts all those (not just employers) on whom the OHS Act imposes obligations.

44    Despite the fact that I am satisfied that more could have been done by Post Logistics in the present case, as it has admitted, I am not satisfied, having regard to the circumstances of the incident on 31 March 2008, which is central to the pleaded allegations, that its default was in the “high” range. To find that it was would diminish the seriousness with which truly serious breaches should really be approached. Although workplace health and safety is a vital matter in its own right it is most important to retain and apply an adequate sense of proportion lest sight be lost of the need to sufficiently emphasise the punishment of truly serious breaches. That will not be done by an over zealous use of the upper end of the range of penalties prescribed by Parliament. If the maximum penalty is reserved for the “worst possible case” (see e.g. in a criminal context, Markarian v R (2005) 228 CLR 357 at [31]) it follows that a “high range” penalty should be reserved for a truly serious breach. The significance of such a penalty should not in my view be reduced by its routine application to breaches which are not of that kind. The present case was not of that kind. Nor do I think, despite the concession made by Post Logistics, that a penalty of $120,000 to $140,000 is appropriate.

45    I make it clear that the foregoing observations are not intended as any criticism of counsel for either party, whose submissions (both written and oral) were of considerable assistance to me.

46    Fixation of an appropriate penalty is ultimately a matter for the Court. I propose to fix a penalty bearing in mind all the matters I have mentioned. In the circumstances of the present case I have decided that, despite the position taken by the parties, a penalty of $80,000 would be sufficient to indicate the seriousness of the breach of the OHS Act in the present case, having regard to the agreed position of the parties about the facts and about liability.

47    A declaration and pecuniary penalty order will be made to reflect the findings I have made. Post Logistics accepted that it should pay the applicant’s costs.

Associate:

Dated:    13 December 2011