FEDERAL COURT OF AUSTRALIA

Comcare v Transpacific Industries Pty Ltd [2012] FCA 90

THE COURT DECLARES AND ORDERS THAT:

1.    The Court declares that on 2 September 2009 at the premises known as Alcoa Wagerup Alumina Refinery in the State of Western Australia, the respondent contravened cl 2(1)(a) of Pt 1 of Sch 2 of the Occupational Health and Safety Act 1991 (Cth) (OHS Act) in that it breached s 16(1) of the OHS Act by its failure to take all reasonably practicable steps to protect the health and safety at work of its employees by:

(a)    failing to identify that open manholes without any barriers or signage in place, which provided access to the middle chamber of Flash Tank 21 at the Wagerup Refinery (Wagerup Refinery), constituted a fall hazard within the meaning of Regulation 13.03 of the Occupational Health and Safety (Safety Standards) Regulations 1994 (Cth) (fall hazard);

(b)    prior to the incident which occurred at the Wagerup Refinery on 2 September 2009, when one of the respondent’s employees, Paul Herbert Fry (Mr Fry), entered the middle chamber through one of the open manholes and fell to his death (Incident), failing to undertake a risk assessment of the fall hazard.

(c)    prior to the Incident, failing to take reasonably practicable steps to prevent Mr Fry and its other employees working in the tank from the fall hazard by causing the open manholes to be closed or barricaded in such a way that high pressure water cleaning of the tank could be carried out by the respondent’s employees, but the respondent’s employees could not enter the middle chamber through any of the manholes.

2.    Pursuant to cl 4 of Pt 1 of Sch 2 of the OHS Act the respondent pay to the Commonwealth of Australia a pecuniary penalty in respect of the breach of s 16(1) of the OHS Act of 1550 penalty units which equates to $170,500.

3.    The respondent pay the applicant's costs to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

A QUESTION OF PENALTY

1    At the hearing of this proceeding, the respondent, by counsel, indicated to the Court that it admitted the substance of the case brought against it by the applicant, Comcare, that it contravened cl 2(1)(a) of Pt 1 of Sch 2 of the Occupational Health and Safety Act 1991 (Cth) (OHS Act), in that it breached s 16(1) of the OHS Act by its failure to take all reasonably practicable steps to protect the health and safety at work of its employees by:

(1)    failing to identify that open manholes without any barriers or signage in place, which provided access to the middle chamber of the Flash Tank 21 at the Wagerup Refinery constituted a fall hazard within the meaning of reg 13.03 of the Occupational Health and Safety (Safety Standards) Regulations 1994 (Cth) (OHS Regs) (fall hazard);

(2)    prior to the incident which occurred at the Wagerup Refinery on 2 September 2009, when one of the respondent’s employee’s, Paul Herbert Fry (Mr Fry), entered the middle chamber through one of the open manholes and fell to his death, failing to undertake a risk assessment of the fall hazard; and

(3)    prior to the incident failing to take reasonably practicable steps to prevent Mr Fry and its other employees working in the tank from the fall hazard by causing the open manholes to be closed or barricaded in such a way that high pressure water cleaning of the tank could be carried out by the respondent’s employees but the respondent’s employees could not enter the middle chamber through any of the manholes.

2    At the hearing the respondent also indicated that it accepted that a pecuniary penalty should be ordered and paid pursuant to cl 4 of Pt 1 of Sch 2 of the OHS Act in respect of the breach of s 16(1) of the OHS Act; and that it should pay the applicant’s costs of the proceedings to be taxed if not otherwise agreed.

agreed facts

3    The parties prepared a statement of agreed facts for the purpose of the hearing on penalty, which were received as Exh 1 in the proceeding and which, subject to some minimal editing for style by the Court for the purposes of these reasons, states as follows:

4    Standing: The applicant is and was, at all material times:

(a)    a body established pursuant to s 68 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act); and

(b)    authorised to apply for relief pursuant to s 77 and cl 5(1) of Pt 1 of Sch 2 of the OHS Act.

5    The respondent is and was, at all material times:

(a)    a company duly registered in accordance with the requirements of the Corporations Act 2001 (Cth) and capable of suing and being sued;

(b)    the holder of a licence in the Comcare scheme, granted pursuant to Pt VIII of the SRC Act;

(c)    "non-Commonwealth licensee", within the meaning of s 5 of the OHS Act;

(d)    the employer of employees engaged to perform work at the Alcoa Alumina Refinery owned and operated by Alcoa of Australia Limited (Alcoa) at Wagerup, Western Australia (Wagerup Refinery);

(e)    under a statutory duty, pursuant to s 16(1) of the OHS Act, to take all reasonably practicable steps to protect the health and safety, at work, of its employees; and

(f)    pursuant to s 82(1) of the OHS Act, subject to the OHS Regs.

6    Contract between Alcoa and Transpacific Industrial Solutions Pty Ltd: In 2009, Transpacific Industrial Solutions Pty Ltd (TIS), a related entity of the respondent, was under contract to Alcoa to perform services at the Wagerup Refinery, which services included the high pressure water cleaning of mineral processing vessels known as "Flash Tanks". TIS retained the respondent to perform the services under its contract with Alcoa.

7    The high pressure water cleaning of the Flash Tanks at the Wagerup Refinery primarily involved the high pressure water blasting of "scale" from the interior of the Flash Tanks. “Scale” is a rock like substance which is deposited on the interior of the Flash Tanks, after it has leached out of the ore which is processed in the Flash Tanks.

8    Flash Tank 21: One of the Flash Tanks which TIS was required to clean in 2009 was Flash Tank 21. The tank was an enclosed vertical mineral processing vessel which stood approximately 35 m high and comprised two principal chambers: an upper chamber (upper chamber) and a middle chamber (middle chamber).

9    The upper chamber was located at the top of the tank. It had a moderately domed roof and a solid metal floor. Access to the upper chamber could be gained only through a 750 mm diameter manhole on the eastern side of the chamber. Once a person was inside the upper chamber, the space above the floor in the upper chamber allowed that person to stand erect. The solid floor of the upper chamber prevented any access to the middle chamber below.

10    The middle chamber was a floorless, cavernous void, interrupted only by four diagonal cross-members or trusses (cross-members), each of which ran from a different position on the tank wall to a vertical and centrally located riser tube. The chamber gave way to a cone shaped “gather” (cone) at the bottom, which, in turn, led to a waste chute (waste chute), and then to the ground. Access to the middle chamber was available through four manholes served by gantry platforms of open grid and chequer plate non-slip steel. Three of the manholes had a diameter of approximately 750 mm and the fourth had a diameter of approximately 1050 mm. The highest of the four manholes was approximately 30 m above the ground. The top of the waste chute was approximately 21 m above the ground.

11    Also running vertically down the inside wall of the tank were two drain legs (drain legs), which began at the floor of the upper chamber, and extended down to the bottom of the middle chamber. The drain legs were designed to carry waste material from the mineral processing from the upper chamber, down through the middle chamber, and to the waste chute.

12    When the tank was being operated by employees of Alcoa, each of the manholes to the upper and middle chambers was covered with a firmly secured steel hatch.

13    Prior to the respondent’s employees commencing the high pressure water cleaning of the tank, and as part of the handover process for the tank, employees of Alcoa removed the steel hatches from each of the five manholes in the tank, to enable the respondent's employees to have access to the upper and middle chambers and carry out the descaling and cleaning process. When the hatches were removed from each of the manholes, the flanges of each of the manholes were seen to be covered with scale.

14    The respondent’s employees commenced their work by using "rivet busters" to remove scale from the manhole flanges. When that had been done, all the manholes were open to their full diameter. Alcoa personnel then returned to the tank, inspected the inside of the tank, and issued two confined space entry permits to the respondent’s employees, permitting them to commence high pressure water blasting of the scale built up on the walls of the tank.

15    The respondent’s employees then began high pressure water blasting of the inside of the cone, by inserting high pressure hoses through one of the four manholes in the middle chamber, and placing a thin metal shield over the manhole, to protect the operator from flying scale.

16    After clearing the scale from the cone, the respondent’s employees moved to the upper chamber, where they commenced high pressure water blasting, to remove the scale from the upper chamber and the drain legs. The respondent’s employees performed that work while standing on the metal floor of the upper chamber.

17    During the time the respondent's employees were working on the upper chamber, the manholes in the middle chamber remained open without any barriers or signage. The open manholes in the middle chamber thereby posed a ‘fall hazard’, as defined in reg 13.03 of the OHS Regs.

18    Paul Herbert Fry: Mr Fry was one of the respondent’s employees who was required by the respondent to carry out the high pressure cleaning of the tank. As at 2 September 2009, Mr Fry was a qualified high pressure water hydro blaster operator, with approximately 10 years experience in high pressure water blasting. Mr Fry was employed by the respondent as a leading hand, having been appointed to that position in or around June 2002.

19    On 2 September 2009, Mr Fry was the leading hand of a work team of three men, who were carrying out the high pressure water cleaning of the tank. The other members of the team were Robert Rundell and Jamie Newman (Mr Newman).

20    The incident: At approximately 5.00 am on 2 September 2009, Mr Fry and Mr Newman were the two members of the team who were in the upper chamber of the tank, carrying out the high pressure water blasting to remove the scale from the upper chamber and the drain legs.

21    While they were doing that, Mr Newman and Mr Fry found that one of the drain legs had become blocked with scale, which required clearing (blocked drain leg). Both Mr Newman and Mr Fry considered that the head of the high pressure water hose they were using was inadequate to enable them to clear the blocked drain leg and, accordingly, Mr Newman removed the head and attempted to replace it with a "rat" hose head. However, he was unable to attach the new hose head with the tools he had, and asked Mr Fry to obtain a larger spanner for that purpose. Mr Fry agreed to do that, and then left the upper chamber to obtain the larger spanner.

22    After Mr Fry left the upper chamber, he:

(a)    collected a large spanner from an unknown location;

(b)    stood on the gantry platform next to one of the open manholes which gave access to the middle chamber (manhole);

(c)    of his own volition, fully or partially entered the middle chamber through the manhole;

(d)    slipped and/or fell as he was entering or after he entered the middle chamber;

(e)    fell into the middle chamber, then down into the area where the cross-members were located, down to the cone, and through the waste chute to the ground; and

(f)    thereby suffered injuries which caused his immediate death.

(incident).

23    No one saw Mr Fry approach or enter the middle chamber of the tank and it is not known why Mr Fry fully or partially entered the manhole. The work being carried out by Mr Fry immediately prior to the incident did not require him to do that.

24    Mr Fry’s entry to the middle chamber of the tank was contrary to the standing operating procedures of both TIS and Alcoa, which were in force at that time. The standard operating procedures of TIS and Alcoa, which were in force at the time of the incident, did not suggest that manholes in the tank that were left open while the tank was being cleaned posed a fall hazard. Nor did the respondent’s standard operating procedures for high pressure water cleaning of vessels, which were in force at the time of the incident, suggest that such open manholes posed a fall hazard.

25    Prior to the incident, the respondent did not undertake a risk hazard assessment of the fall hazard.

26    Prior Incident: Mr Fry had entered the middle chamber on a previous occasion. On the night of 4 June 2006, and while he was involved in high pressure water blasting of the cone, Mr Fry entered the middle chamber, in breach of the terms of a confined space entry procedure issued by Alcoa, and in contravention of the standing operating procedures of the respondent, TIS and Alcoa then in force (prior incident).

27    At the time of the prior incident, Mr Fry was a leading hand employed by the respondent and was the team leader of the team which was carrying out the high pressure water cleaning of the tank. He was also the senior operator on site during the shift on which the prior incident occurred.

28    On that occasion, it was proving difficult to break scale in the cone, and Mr Fry endeavoured to overcome that problem by leaning into the middle chamber through an open manhole and attempting to relocate some high pressure water blasting equipment.

29    In doing so, Mr Fry exposed himself to a high risk of falling from the middle chamber to the ground, a height of approximately 21 m (risk).

30    Immediately following the prior incident, TIS carried out an investigation into the prior incident, issued a report of that investigation (report) and took disciplinary action against Mr Fry (disciplinary action).

31    The disciplinary action comprised:

(a)    TIS issuing a written warning to Mr Fry;

(b)    the respondent standing Mr Fry down from work for two weeks;

(c)    the respondent demoting Mr Fry from his position of leading hand;

(d)    the respondent requiring Mr Fry to complete, and Mr Fry completing, a number of refresher training courses which included courses on confined space entry, but did not include a course on working at heights, because neither TIS nor the respondent identified that the prior incident occurred because of any deficiency in Mr Fry’s training in or knowledge of the procedures to be followed when working at heights;

(e)    the respondent making it clear to Mr Fry that entering flash tanks without authority and in breach of its standing operating procedures and the standard operating procedures of TIS and Alcoa was not acceptable, and that any repeat of the prior incident would lead to further disciplinary action against him, including the possible termination of his employment with the respondent;

(f)    the respondent requiring Mr Fry to address, and Mr Fry addressing on 13 June 2006, a “toolbox” meeting of his work colleagues, during which address Mr Fry discussed the prior incident, acknowledged that he had failed to observe safety requirements and apologised for his behaviour.

32    In or around April 2007, the disciplinary action having been completed, and there having been no repetition by Mr Fry of the prior incident, the respondent restored Mr Fry to the position of leading hand. At the hearing, five photographs of the plant and the Flash Tank 21 in question, including as photograph 3 the manhole through which Mr Fry most probably entered the middle chamber were tendered and became Exh 2 in the proceeding. The photographs considerably aided the Court’s appreciation of the material facts agreed by the parties and assisted an appreciation of counsel’s oral submissions.

33    Other agreed facts: In the course of oral submissions the parties also indicated to the Court that it was agreed, as a matter of fact, that:

    There were scuff marks near a manhole to the middle chamber.

    Mr Fry had entered the middle chamber for a reason associated with his work on the day in question and not for some unrelated purpose.

    A spanner was found near Mr Fry’s body.

consideration of penalty

34    General Principles: The parties are in agreement that in assessing penalty for the purpose of the contravention acknowledged by the respondent, guidance may be drawn from the approach taken by Madgwick J in Comcare v Commonwealth of Australia [2007] FCA 662; (2007) 163 FCR 207 (the “Trooper Lawrence” case) bearing in mind the cautions expressed by North J in Comcare v Commonwealth of Australia [2009] FCA 700; (2009) 184 IR 441 (the “Cadet Francis” case) and Flick J in Comcare v Post Logistics Australasia Pty Ltd [2008] FCA 1987; (2008) 178 IR 200 (Post Logistics 2008).

35    I reaffirm the cautionary statements made by North J and Flick J in relation to the principles identified by Madgwick J in Trooper Lawrence as relevant to the consideration of penalty. In exercising the power, guidance may be drawn from how the power to impose penalties for breaches of statutory provisions is exercised under a range of statutes, as explained in the Trooper Lawrence case. However, primarily, in a case such as the present, it is from and against the terms of the OHS Act that all the relevant penalty principles must, in the end, be drawn.

36    As explained in the Trooper Lawrence case, the Cadet Francis case and other recent decisions of the Court following them, the seriousness of the contravention is central to the penalty assessment process. Another way of expressing that consideration is the nature and extent of a contravening conduct. Aspects of the seriousness consideration the Court must undertake include:

(1)    the extent to which the risk of injury in a given situation was foreseeable, even if the precise cause or circumstances of exposure to the risk were not;

(2)    if in any case the risk of injury was actually foreseen, but no adequate response was taken to obviate it;

(3)    the risk of injury that may be foreseen in respect of not only serious personal harm, but also death. While the gravity of a consequence of a particular accident will not usually itself dictate the level of seriousness of a contravention or the amount of the penalty, the fact that failure to comply with the OHS Act may lead to death, and a fatality has occurred will usually be relevant to assessing the seriousness of a contravention;

(4)    the systemic failure of an employer to do something about a foreseeable risk contrasted with the risk of injury which results from inadvertence or a momentary lapse of supervision;

(5)    the size of the contravener’s organisation and its capacity to have in place systems that would have obviated or minimised the risks of injury. On the other hand, it does not necessarily follow that because an organisation is not large that it owes some lesser responsibility;

(6)    the processes, protocols or systems that an employer has adopted in order to educate its employees, to ensure that its safety systems are effective and to discipline employees when systems are breached; and

(7)    the reaction of an employer to any incident as well as any penalty proceedings brought against them, which is connected to the proceeding factor discussed above. The cooperation and, in some cases, the early admission of responsibility for a contravention may be relevant.

37    However, it is reasonable to observe that in determining the penalty to be imposed, it is the object seriousness of the offence that is “front and centre” and that factors such as an early guilty plea, cooperation with the investigating authorities and the like play a more incidental or subsidiary role in the determination of penalty: see generally WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) NSWLR 700 at 714; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch’ng) (1999) 90 IR 464.

38    In stating this broad approach, I do not disagree with observations recently made by Buchanan J in Comcare v Post Logistics Australasia Pty Limited [2011] FCA 1422 (Post Logistics 2011), where his Honour expressed his concerns about adopting an automatic application of a checklist drawn from criminal law sentencing principles, as suggested in Trooper Lawrence. I agree there is a danger in any ritual incantation of a set of considerations in deciding what penalty is appropriate in a particular case. In the present case, the fundamental need to impose a penalty that highlights the importance of compliance with occupational health and safety law in order to ensure the safety of employees at work must always be kept at the forefront of the penalty assessment process. That is not to say that notions of “deterrents”, either specific or general, are irrelevant, for, in my view, they plainly are closely allied to this primary objective of ensuring the objects of the OHS Act are met. It is important that a particular respondent who admits contravention of the OHS Act or is found guilty of contravening the OHS Act should suffer a sufficient penalty, having regard to the seriousness of the contravention, so as to remind them of the significance of their responsibilities under the OHS Act. It is also important to remind employers more generally of the significance of their responsibilities under the OHS Act. No doubt the concept of “deterrence” can be expressed in different ways; but so long as the penalty is assessed with the importance of meeting the occupational health and safety obligations under the OHS Act are steadfastly borne in mind – not mere punishment or retribution against a contravener – then, in my view, the penalty assessment process will be properly undertaken.

39    Respondent’s submissions: The respondent submits that the penalty should be fixed by reference to the following considerations:

(1)    the fact that, notwithstanding that the work being done by its employees in carrying out the high pressure water cleaning of the tank was being performed approximately 30 m above the ground, the respondent did not consider that the open manholes constituted a “working at heights” issue, and, accordingly, did not assess the open manholes as a fall hazard and took no steps to protect its employees from that fall hazard;

(2)    it was not possible for the respondent’s employees who were working near any of the open manholes which gave access to the middle chamber to accidently slip or fall through any of the open manholes into the middle chamber;

(3)    the only way in which an employee of the respondent could enter the middle chamber through one of the open manholes was by deliberately leaning or climbing through the manhole into the middle chamber;

(4)    in the incident, Mr Fry entered the middle chamber by deliberately leaning or climbing through the manhole; at the time of the incident, the respondent had and strictly applied an occupational health and safety policy for the protection of its employees, but that did not prevent the incident, because the respondent did not consider the open manholes a fall hazard or a working at heights issue;

(5)    the respondent has taken significant steps since the incident to improve its occupational health and safety policy and its strict implementation;

(6)    the respondent, and Alcoa, have, since the incident, introduced a system of cleaning flash tanks at the Wagerup Refinery whereby, prior to the respondent’s employees commencing work on a flash tank, employees of Alcoa place scaffolding or “scaff bars” across the open manholes in the flash tank, which do not interfere with the cleaning of the flash tank, but make it impossible for the respondent’s employees to enter the middle chamber;

(7)    the respondent co-operated fully with the applicant during its investigation of the incident and, although, on 2 September 2011, the respondent filed and served a defence in which it denied that it had breached s 16(1) of the OHS Act, it has, since 22 February 2011, only two months after these proceedings were issued, been in communication with the applicant, indicating that it was prepared to make admissions in relation to the applicant’s allegations;

(8)    at a mediation held at Court on 7 October 2011, the respondent informed the applicant that it would admit that it had contravened the OHS Act and that the only issue to be determined at the hearing would be the appropriate pecuniary penalty; and

(9)    the respondent has shown remorse for its contravention of the OHS Act, and for its role in Mr Fry’s death, and has provided support for Mr Fry’s family since his death.

40    The submissions encapsulated in (1)-(9) of the previous paragraph do not expressly contend that the contravention acknowledged by the respondent was not serious, but do argue that the respondent had previously taken serious steps, including disciplinary steps in relation to Mr Fry personally some three years earlier in 2006, when Mr Fry had made an unauthorised entry into the middle chamber.

41    Consideration: The essence of the submissions made by the respondent is that it had done much to prevent an accident, such as the incident which resulted in Mr Fry’s death, from occurring. However, the respondent accepts explicitly it could have done more, prior to the incident, by way of making it extremely difficult, if not completely impossible, for a person, such as an employee of the respondent, from entering the middle chamber through a manhole. The steps taken since the incident establish that protective steps are quite feasible. Indeed, Comcare contends that the fact that no such steps were earlier taken highlights the seriousness of the contravention.

42    The fact that the respondent was on notice, from the disciplinary steps it took in respect of Mr Fry in 2006, that entry through a manhole to the middle chamber was possible, and constituted a risk is clearly established. The risk was not that a person would trip and fall from the gantry through a manhole into the middle chamber, but that an employee who was so minded to find their way into the middle chamber, for example to expedite some work they were engaged in, might feasibly do so.

43    Indeed, in this case, it is accepted by the parties that when Mr Fry fatally entered the middle chamber he was engaged in work on behalf of the respondent, and not on some “frolic of his own”. There is a suggestion, though it remains speculative, that Mr Fry may have thought he could have assisted the work that his colleague, Mr Newman, was doing in the upper chamber, by taking the spanner he had just retrieved with him into the middle chamber. The agreed fact is that, by inference, when Mr Fry left Mr Newman in the top chamber in order to get an appropriate spanner, he in fact obtained a spanner. A spanner was found near Mr Fry’s body.

44    There is, in all the circumstances, force in the submission made by Comcare, that the prior incident in 2006 was sufficient to cause the respondent to have done more than it did to ensure that its employees did not enter the middle chamber.

45    The respondent has additionally submitted that in some cases a factor that may be taken into account in assessing a penalty is the extent to which an employee may be considered responsible for the conduct that has led to a finding of contravention of the OHS Act. For example, in Post Logistics 2008, Flick J, at [45], took into account the fact that an employee who was fatally injured in a work accident had engaged in a degree of “horseplay” himself.

46    Furthermore, in Post Logistics 2011 at [25], Buchanan J observed that although an employer may not avoid liability for failure to protect even a careless employee, “it does not follow that people bear no responsibility to give proper attention to their own safety and those around them”. His Honour considered that in taking this approach, attention was directed to the need for all employees in a workplace to have regard for safety procedures.

47    For my own part, while accepting generally that the particular conduct of employees might, depending on the circumstances, be regarded in determining the level of responsibility of a respondent for a contravention of the OHS Act, it will usually be in the assessment of the seriousness of the contravention that the conduct of other persons involved in the contravention will be so taken into account. The more unpredictable some employee’s behaviour may have been, and so apparently outside the control of the employer, perhaps the less serious the contravention might be viewed. But to state this is simply to emphasise that such a statement is made at a high level of generality and that every case must depend on its own particular circumstances. Properly managed organisations will always ensure that employees are fully aware of all of the sorts of mishaps that can occur in a workplace and lead to serious injuries or fatalities.

48    There is, as a matter of fact, absolutely no suggestion here that Mr Fry was engaged in any “horseplay” when he entered the middle chamber, nor that he was on some independent frolic of his own. It is agreed by the parties that, however Mr Fry came to enter the middle chamber – whether he entered fully or fell through the manhole – he was engaged in work on behalf of the respondent.

49    In the circumstances of this case, I do not consider that the seriousness of the contravention acknowledged by the respondent should be considered any less than it otherwise appears, by reason of the fact that Mr Fry made a judgment that resulted in him entering the middle chamber and suffering a fatal injury.

50    There is no doubt that the contravention here was serious. The fact that an employee such as Mr Fry had, on a previous occasion, entered the middle chamber of his own volition to carry out works emphasised the foreseeablity of a serious injury or fatality occurring. Obviously the respondent considered, at material times, that in disciplining Mr Fry in 2006, it had taken sufficient steps to remove that risk. It is not just in retrospect that one can say that such an assumption was too readily made. That one employee had decided on one occasion to enter the middle chamber for work purposes made it foreseeable that, at some other time in the future, some other employee, if not Mr Fry, might do the same thing. The need for protective measures to be in place to obviate the risk was then raised as an issue.

51    I accept the submission made on behalf of Comcare that one of the significant reasons for legislation such as the OHS Act is that, on many occasions, industrial health and safety mechanisms need to be put in place by an employer to guard against the possibility that employees generally or particular employees might ignore what would seem to be imprudent behaviour, not just because they are fooling around, skylarking or acting up, but because they have a genuine desire to get about their employer’s work and might have a tendency, on occasion, to disregard procedures that are designed to protect them from injury or indeed loss of life. In short, occupational health and safety standards are put in place, apart from any other reason, sometimes to protect employees against themselves.

52    I accept, as I have already noted, that the respondent has taken significant steps since the incident to improve its occupational health and safety policy and standards and that preventive measures have now been put in place. In particular, “scaff bars” are now installed across the open manholes in the Flash Tank when maintenance work is undertaken. They do not interfere with the cleaning of the Flash Tank, but make it very difficult, if not impossible for the respondent’s employees to enter the middle chamber. Alcoa, which hands over the tanks at material times to the respondent for cleaning, now ensures that at the time of handover the scaff bars are in place.

53    I also accept that the respondent has cooperated fully during the investigation of the incident. The respondent also submits that while it filed a defence denying it had breached s 16(1) of the OHS Act, it had since 22 February 2011 been in communication with the applicant, and ultimately made admissions in relation to the allegations against it. I take into account the cooperative action taken by the respondent, although I note that this is not a case where a respondent employer quite early on notifies its admission of contravention of the OHS Act, thereby reducing the need for contested proceedings, and so the cost and expense of the proceedings, as well as the potential emotional impact on a range of persons who may be expected to be affected by such an incident.

54    I accept too that the respondent has shown remorse for its contravention. While it might be said that the concept of “remorse” is more easily understood in relation to an individual, nonetheless the respondent in this case ultimately accepted its contravention, the need to improve occupational health and safety standards in light of the incident, and regarded the circumstances of the family of the late Mr Fry who plainly, from the impact statements filed in the proceedings, have been severely affected by the untimely loss of their husband and father.

55    The maximum fine that might be imposed under the OHS Act is a civil penalty of 2200 penalty units or $242,000 ($110 per unit). Comcare, through counsel, submits that a civil penalty in the mid to upper range should be ordered. The respondent submits that the appropriate penalty should be $120,000, submitting that the contravention is in the midrange, rather than the upper range applicable to case of the most serious injury category.

56    Comcare has referred in its written submissions to the following cases where pecuniary penalties were imposed:

    Comcare v The Commonwealth of Australia [2010] FCA 1331; (2010) 201 IR 93, a fatal incident case where the penalty imposed was $242,000 being the maximum penalty, plus costs.

    The Cadet Francis case referred to above, a fatal incident case where the penalty was 1910 penalty units equating to $210,100 plus costs.

    The Trooper Lawrence case referred to above, a fatal incident case where the penalty was 1800 penalty units equating to $198,000 plus costs.

    Comcare v John Holland Pty Ltd (No 2) [2009] FCA 1515; (2009) 191 IR 223, a fatal incident case where the penalty was $180,000 plus costs.

    Post Logistics 2008, a fatal incident case where the penalty was $165,000 plus costs.

    Comcare v Linfox Australia Pty Ltd (ACN 004 718 647) [2010] FCA 793; (2010) 198 IR 160, a serious injury case where the penalty imposed was $150,000 plus costs fixed at $25,000.

    Comcare v John Holland Rail Pty Ltd [2009] FCA 771; (2009) 188 IR 415, a serious injury incident case where the Court imposed 1136 penalty units equating to $124,960 plus costs.

    Comcare v National Gallery of Australia [2007] FCA 1548; (2007) 98 ALD 67, a minor injury case where the Court imposed a penalty of $20,000 plus costs.

57    It is well understood that the process of assessing penalty in a case such as that before me does not involve the Court seeking to identify some “tariff” or “standard penalty” or “average penalty” by reference to penalty orders made in similar or like cases. To take that approach is entirely wrongheaded. Apart from anything else, it is difficult to compare cases. Further, the fact that an incident has resulted in a fatality is not an appropriate basis upon which to assess penalty. It is the seriousness of the contravention as indicated by the evidence that must be considered. As I have noted above, the fact that a fatality or serious injury has followed, may be illustrative of the fact that the contravention was serious, in that a risk was real and not averted.

58    Nonetheless, the cases I have referred to above emphasise that judges of this Court have imposed significant pecuniary penalty orders for serious contraventions of the OHS Act. This confirms a legislative intention that appropriately weighted penalties will often be needed, depending on the circumstances of each case, to realise the object of the OHS Act to ensure that safe work practices are adopted by employers in the interests of all employees.

59    In this case, the respondent has endeavoured to put in place appropriate occupational health and safety standards. Its significant failing, however, was that prior to the incident it did not identify the manholes to the middle chamber as a fall hazard. Plainly, as I have found, and not just in retrospect, it should have identified the manholes in the middle chamber as a fall hazard. The contravention now acknowledged by the respondent is an acknowledgement of that fact. The nature of the risk associated with the failure to identify the manholes to the middle chamber as a fall hazard was a significant one. The significance of this hazard had previously been identified in 2006, when the respondent had occasion to discipline Mr Fry for entering the middle chamber for work purposes without authorisation. The middle chamber is a place in which it is not possible for a person to easily stand and carry out descaling or other works. It was well recognised that an employee should not go there. The fact that, in the ultimate incident, Mr Fry went there, and went there for the purposes of his work, demonstrates the seriousness of the breach. It led to his untimely death. In all of these circumstances I consider the contravention to be serious.

60    Taking into account all of the factors I have mentioned above, I consider there should be an order for a pecuniary penalty order in the upper range. I would make an order that the respondent be ordered to pay a penalty equal to 1550 penalty units, which equates to $170,500, plus costs.

order

61    The Court declares and orders as follows:

1.    The Court declares that on 2 September 2009 at the premises known as Alcoa Wagerup Alumina Refinery in the State of Western Australia, the respondent contravened cl 2(1)(a) Pt 1 of Sch 2 of the Occupational Health and Safety Act 1991 (Cth) (OHS Act) in that it breached s 16(1) of the OHS Act by its failure to take all reasonably practicable steps to protect the health and safety at work of its employees by:

(a)    failing to identify that open manholes without any barriers or signage in place, which provided access to the middle chamber of Flash Tank 21 at the Wagerup Refinery (Wagerup Refinery), constituted a fall hazard within the meaning of Regulation 13.03 of the Occupational Health and Safety (Safety Standards) Regulations 1994 (Cth) (fall hazard);

(b)    prior to the incident which occurred at the Wagerup Refinery on 2 September 2009, when one of the respondent’s employees, Paul Herbert Fry (Mr Fry), entered the middle chamber through one of the open manholes and fell to his death (Incident), failing to undertake a risk assessment of the fall hazard.

(c)    prior to the Incident, failing to take reasonably practicable steps to prevent Mr Fry and its other employees working in the tank from the fall hazard by causing the open manholes to be closed or barricaded in such a way that high pressure water cleaning of the tank could be carried out by the respondent’s employees, but the respondent’s employees could not enter the middle chamber through any of the manholes.

2.    Pursuant to cl 4 of Pt 1 of Sch 2 of the OHS Act the respondent pay to the Commonwealth of Australia a pecuniary penalty in respect of the breach of s 16(1) of the OHS Act of 1550 penalty units which equates to $170,500.

3.    The respondent pay the applicant's costs to be taxed if not otherwise agreed.

Associate:

Dated:    14 February 2012