FEDERAL COURT OF AUSTRALIA

Comcare v Airservices Australia [2016] FCA 418

ORDERS

THE COURT DECLARES THAT:

1.    On 7 August 2011, the Respondent contravened subcl 2(1)(a) of Sch 2 of the Occupational Health and Safety Act 1991 (Cth) (the Act), by reason of it having breached s 16(1) of the Act by failing to take all reasonably practicable steps to protect the health and safety at work of its employees in the 2007 Rosenbauer Panther Ultra Large Fire Vehicle Mark 8, bearing Northern Territory Special Vehicle registration plates “SV3” (Fire Vehicle), by:

(a)    failing to train, inform and instruct its employees appropriately in driving on public roads under emergency conditions; and

(b)    failing to conduct an appropriate risk assessment to identify and subsequently control hazards relating to the task of driving on public roads under emergency conditions.

2.    On 7 August 2011, the Respondent contravened subcl 2(1)(a) of Sch 2 of the Act, by reason of it having breached s 17 of the Act by failing to take all reasonably practicable steps to ensure that persons other than its employees and contractors who were near the Fire Vehicle were not exposed to risk to their health or safety arising from its operation, by:

(a)    failing to train, inform and instruct its employees appropriately in driving on public roads under emergency conditions; and

(b)    failing to conduct an appropriate risk assessment to identify, and subsequently control, hazards relating to the task of driving on public roads under emergency conditions.

THE COURT ORDERS THAT:

3.    The Respondent pay the Commonwealth a pecuniary penalty of $160,000 in respect of the contravention of subcl 2(1) of the Occupational Health and Safety Act 1991 (Cth) which is the subject of the first declaration herein.

4.    There be no penalty imposed in respect of the contravention which is the subject of the second declaration.

5.    The Respondent pay the Applicant’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

WHITE J:

1    At about 8:45 am on 7 August 2011, a fire truck collided with a Mitsubishi Triton utility at the intersection of Berrimah Road and Tiger Brennan Drive, Darwin. The collision had tragic consequences as three of the occupants of the Triton utility were killed. Although the driver of the fire truck did not suffer physical injuries, the incident has had a significant psychological impact on him, so much so that he has not yet returned to work.

2    The fire truck was part of the firefighting service at the Darwin Airport conducted by the respondent, Airservices Australia (Airservices). It was on its way to a fire at the Wyuna Cold Stores facility on Wishart Road, in response to a request for assistance from the Northern Territory Fire and Rescue Services (NTFRS). The fire truck had its emergency flashing lights and sirens activated, thereby operating in what the parties described as “emergency conditions”.

3    The occupants of the truck were Mr Norris, who was driving, Mr McCagh, who was sitting in the front passenger seat, and Mr Williams, who was sitting in the rear passenger seat behind Mr McCagh. Mr Williams was the officer in charge of the truck and Mr McCagh in the position of “operator”.

4    The intersection of Berrimah Road and Tiger Brennan Drive (the intersection) is controlled by traffic lights. The fire truck was travelling south on Berrimah Road at a speed of approximately 77 kms per hour. The applicable speed limit was 70 kms per hour.

5    The Triton utility was travelling west on Tiger Brennan Drive. The applicable speed limit was 100 kms per hour. The occupants of the Triton were Ms Yali and her partner Mr McNamara, Mr Taylor and Mr Harris. Mr McNamara was driving.

6    As the fire truck approached the intersection, the traffic lights applicable to it changed from yellow to red. Those in the fire truck believed that, despite the red light, they had right of way by virtue of the emergency flashing lights and sirens having been activated. Accordingly, although the fire truck slowed, it entered the intersection against the red light. At the time it was travelling at a speed of about 48 kms per hour. The Triton utility entered the intersection on the green light, and the collision occurred. Each of Ms Yali, Mr McNamara and Mr Taylor thereby suffered fatal injuries. Mr Harris’ injuries were minor only.

7    Airservices is a body corporate established pursuant to s 7 of the Air Services Act 1995 (Cth). Its functions include the performance and provision of various aviation-related activities and services in and around Australian metropolitan and regional airports, including the provision at some 26 airports of rescue and firefighting services through its Aviation and Rescue Fire Fighting Service (ARFFS).

8    Airservices is a “Commonwealth authority” as defined in s 5 of the former Occupational Health and Safety Act 1991 (Cth) (OHS Act) and, accordingly, an “employer” for the purposes of that Act. By virtue of Sch 2 of the Work Health and Safety (Transitional and Consequential Provisions) Act 2011 (Cth), the OHS Act continues to apply to contraventions of that Act which occurred before 1 January 2012.

9    The applicant (Comcare) alleges that, in relation to the collision on 7 August 2011, Airservices breached the obligations imposed on it by s 16(1) and s 17 of the OHS Act. It seeks declarations to that effect and the imposition of a pecuniary penalty. Comcare’s standing to do so is found in s 77 of the OHS Act.

10    Airservices admits its contraventions and acknowledges that Comcare is entitled to the relief which it seeks. It did this in the defence which it filed two weeks after the commencement of the proceedings and, therefore, at the earliest practical opportunity. Accordingly, this judgment concerns principally the penalty to be imposed on Airservices.

11    The evidence at the hearing comprised an extensive Statement of Agreed Facts (SOAF) and two affidavits. These included statements from the sister and brother of Ms Yali. Those statements give some insight into the depth of grief they have experienced following the death of Ms Yali.

Statutory provisions

12    Section 16(1) of the OHS Act provides:

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

Section 16(2) specifies, in a non-exhaustive manner, omissions by an employer which will amount to a breach of the obligation imposed by subs (1).

13    Section 17 of the OHS Act imposes an obligation on employers with respect to persons other than employees, as follows:

An employer must take all reasonably practicable steps to ensure that persons at or near a workplace under the employer’s control who are not the employer’s employees or contractors are not exposed to risk to their health or safety arising from the conduct of the employer’s undertaking.

14    As can be seen, the subject matter of s 17 is the safety of persons (other than the employer’s employees or contractors) at or near a “workplace” under the employer’s control. The term “workplace” is defined in s 5 of the OHS Act to include “Commonwealth premises” in which Commonwealth authority employees work. “Commonwealth premises” means “premises” owned or occupied by the Commonwealth or by a Commonwealth authority. The term “premises” is defined in s 5 of the OHS Act in an expansive way and includes a “vehicle”.

15    It was common ground that the fire truck was at material times both “premises” and “plant” as defined in s 5 of the OHS Act for the purposes of ss 16 and 17 of the Act. This meant that Airservices was subject to the obligations imposed by ss 16 and 17 in relation to the movement of the fire truck on Berrimah Road on 7 August 2011.

16    Although Comcare’s pleading particularised the breaches of s 16 by Airservices in a number of alternate and detailed ways. Its substantive allegation however is that Airservices failed to take all reasonably practicable steps to protect the health and safety at work of its employees in the fire truck by:

(a)    failing to train, inform and instruct its employees appropriately in how to drive on public roads under emergency conditions; and

(b)    failing to conduct an appropriate risk assessment to identify and then control hazards relating to the task of driving the fire truck on public roads under emergency conditions.

17    In relation to s 17, Comcare alleges that Airservices failed to take all reasonably practicable steps to ensure that persons who were not its own employees or contractors but who were near the fire truck were not exposed to risks to their health and safety arising from the operation of the truck, by:

(a)    failing to train, inform and instruct its employees appropriately in how to drive on public roads under emergency conditions; and

(b)    failing to conduct an appropriate risk assessment to identify and then control hazards relating to the task of driving on public roads under emergency conditions.

18    As can be seen, in each case the allegation is that Airservices failed to give appropriate training to its employees in relation to driving the fire truck on public roads under emergency conditions and failed to carry out an appropriate risk assessment to identify the risks to its own employees and to other road users in those circumstances.

19    Subclause 2(1) in Pt 1, Sch 2 of the OHS Act provides that, when a court considers that a person has breached specified provisions in the OHS Act, it must make a declaration that the person has contravened the subclause, that is, subcl 2(1) itself. Subclause 2(3) specifies a minimum content for the declaration. Sections 16(1) and 17 are included in the subcl 2 list of provisions to which the subclause applies.

20    Accordingly, in the present case, provided that the Court is satisfied on the basis of Airservices’ admissions and the SOAF that Airserivces did contravene ss 16(1) and 17 in the manner alleged, it must make declarations that Airservices contravened subcl 2(1) of Sch 2 in two respects.

21    Clause 4 in Sch 2 provides that a court which has declared a contravention of subcl 2(1) may order the contravenor to pay a pecuniary penalty to the Commonwealth. The pecuniary penalty must not exceed the maximum penalty applicable to the provision contravened. In the case of ss 16(1) and 17, the maximum penalty is 2,200 penalty units. By reason of s 4AA of the Crimes Act 1914 (Cth), this means that the maximum penalty applicable in this case for each contravention is $242,000.

22    Clause 7 in Sch 2 provides that, although proceedings may be taken against a person in respect of one or more contraventions of subcl 2, a contravenor is not liable to more than one pecuniary penalty in respect of the same conduct. Comcare accepted that cl 7 has the effect in the present case that one penalty only may be imposed for the conduct of Airservices.

23    I consider it appropriate in this case to fix a penalty for the contravention of s 16. In my opinion, the penalty to be imposed for the contravention of s 16 should be that which is appropriate for that contravention: it should not be increased to take account of the fact that the same conduct also contravened s 17. I accept, however, that the potential impacts on other road users form part of the circumstances indicating the gravity of Airservices’ contravention of s 16(1).

The declarations

24    Given the structure of Sch 2 to the OHS Act just outlined, it is appropriate for the Court first to consider the declarations proposed by the parties. I will refer later in more details of the circumstances of the contraventions but indicate now that I am satisfied that it is appropriate for the Court to act on the admissions made by Airservices in its filed defence, the SOAF and the two affidavits. For the reasons which will become apparent, I am satisfied that Airservices did fail to comply with ss 16(1) and 17 of the OHS Act in the manner alleged by Comcare. Accordingly, I will make the declarations sought by Comcare.

Penalty principles

25    Several of the authorities have addressed the principles relating to the imposition of penalties under the OHS Act. It is not necessary to refer to them in detail. Instead, it is sufficient to indicate that I have had regard to Comcare v Commonwealth of Australia [2007] FCA 662, (2007) 163 FCR 207 (Trooper Lawrence) at [116]-[123]; Comcare v Commonwealth of Australia [2009] FCA 700, (2009) 257 ALR 462 at [69]-[71]; Comcare v Post Logistics Australasia Pty Ltd [2012] FCAFC 168, (2012) 207 FCR 178 at [56]-[69]; Comcare v Transpacific Industries Pty Ltd [2015] FCA 500 (Transpacific Industries) at [107]-[123]; and Comcare v Commonwealth of Australia [2015] FCA 810 at [65]-[73].

26    The parties made their submissions in this matter before the High Court delivered judgment in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 326 ALR 476 (Commonwealth v DFWBII). Accordingly, both accepted that, in accordance with the decision of the Full Court in Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59; (2015) 229 FCR 331 (DFWBII v CFMEU), it was not open to them to make submissions as to the appropriate penalty, or even as to a range of penalties. Neither party sought to reopen the matter after the High Court delivered its judgment overturning the decision in DFWBII v CFMEU in order to make submissions of this kind.

27    Although the Commonwealth v DFWBII concerns legislation other than the OHS Act, the plurality (French CJ, Kiefel, Bell, Nettle and Gordon JJ) made two observations concerning civil penalty regimes generally which are pertinent in the present context. The first is that civil penalty provisions are to be understood as part of statutory regimes by which regulators may enforce compliance with provisions having the purpose of protecting or advancing particular aspects of the public interest: at [24]. The second is that the object of civil penalties is primarily to achieve deterrence. They seek to do so by putting a price on contraventions which is sufficiently high to deter repetition by the contravenor and by others who might be minded to contravene the particular regime in the same way: at [55]. Punishment and retribution are not the purpose of civil penalties, although plainly it is the imposition of a sanction in the form of a penalty which is intended to have a deterrent effect.

28    In the present context, the penalty regime in the OHS Act is to be understood as an important means by which the objects in the OHS Act set out in s 3 are to be achieved. Those objects have at their heart the securing of the health, safety and welfare of employees of the Commonwealth while at work, and the protection of persons who are at or near Commonwealth workplaces from risks to their health and safety. Although the provisions in the OHS Act have been repealed and replaced by the Work Health and Safety Act 2011 (Cth), its objects are in substance the same. This means that the penalty the Court imposes must be such as to deter Airservices from further contraventions of the OHS Act and serve as a signal to those in a similar position of the need to comply with their obligations under work, health and safety legislation.

29    Comcare submitted that the Court should have regard to the penalties imposed for contraventions of the OHS Act in previous cases in which a breach of the OHS Act had resulted in a death or deaths. It invited the Court to engage in a comparison of the circumstances of those cases with those of the present, and submitted that for this purpose the penalty imposed in Comcare v Commonwealth of Australia [2010] FCA 1331; (2010) 120 ALD 1 (Comcare v Commonwealth) was “the most comparable” because that was a case involving multiple fatalities.

30    In support of its submissions that the Court should have regard to prior decisions, Comcare referred to the dicta of the Full Court in DFWBII v CFMEU at [252]:

We should also say something about the use of prior decisions in fixing penalties. Despite the not infrequent suggestion, in pecuniary penalty cases, that earlier decisions are of little value, the criminal sentencing process makes substantial use of such decisions. In our view, the development of a consistent approach to the fixing of pecuniary penalties necessitates reference to prior decisions. ….

31    It is to be noted that this dicta was made in the context of the consideration of the Full Court of the penalty to be imposed on a contravenor with a history of multiple prior contraventions. Reference to the penalties imposed for previous contraventions in that context has its own rationale. That rationale does not apply in cases like the present, as it was common ground that Airservices has not previously been found to have contravened the OHS Act or counterpart legislation.

32    Comcare also referred to Transpacific Industries in which Barker J said:

[268]    In taking all relevant factors into account, the Court may also have regard to what penalties have been provided in apparently like cases. This is emphasised in the recent Full Court decision of Director v CFMEU. I, with respect, agree with the comments made by the Full Court to that effect, given that consistency in the imposition of penalties under the OHS Act is also a desired outcome of the operation of the legislative regime.

[269]    At the same time it is understood that there is no “tariff” to be applied for particular types of contraventions. If that were so then the Court would be failing properly to conduct the intuitive synthesis exercise required of it. It would be a slave to precedent rather than to principle in assessing the appropriate penalty.

33    Given that the decision of the Full Court in DFWBII v CFMEU was overturned on appeal by the High Court in Commonwealth v DFWBII, as was, seemingly, much of the reasoning upon which it was based, there may be a question as to the present persuasiveness of the Full Court dicta set out earlier. The Court did not receive any submissions on that topic and it may, in any event, be a matter for the Full Court.

34    I note that in several previous decisions, including Full Court decisions, this Court has either doubted or disapproved an approach to the fixation of penalties in a particular case by comparison of its circumstances with those in previous cases. In NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285, Burchett and Kiefel JJ (with whose reasons on this topic Carr J agreed) said at 295:

A hallmark of justice is equality before the law, and, other things being equal, corporations guilty of similar contraventions should incur similar penalties: … There should not be such an inequality as would suggest that the treatment meted out has not been even-handed: cf the criminal law case Lowe v The Queen. However, other things are rarely equal where contraventions of the Trade Practices Act are concerned. In the present case, differing circumstances, size, market power and responsibility for the contraventions, as well as other factors, complicate any attempt to compare the penalties imposed on the appellant with those imposed on the other corporations.

Another form of comparison is not appropriate. The facts of the instant case should not be compared with a particular reported case in order to derive therefrom the amount of the penalty to be fixed. Cases are authorities for matters of principle; but the penalty found to be appropriate, as a matter of fact, in the circumstances of one case cannot dictate the appropriate penalty in the different circumstances of another case. The point was well made by Spender J in Trade Practices Commission v Annand and Thompson Pty Ltd (at 48,394) when he said:

“Each case must, of course, be viewed on its own facts and facts may be infinite in their variety.”

It follows, as his Honour also said, that “[t]he quantum of penalties imposed in other cases can seldom be of very much direct assistance”.

(Citations omitted)

As can be seen, Burchett and Kiefel JJ disapproved the approach of determining a penalty in a particular case by a comparison of its facts with those of earlier cases in which penalties have been imposed.

35    The approach stated by Burchett and Kiefel JJ has been followed regularly in subsequent decisions. In Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 4) [2006] FCA 21; [2006] ATPR 42-101, Goldberg J adopted the two statements of principle in NW Frozen Foods set out above. Similarly, in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560, each of Graham and Buchanan JJ referred with approval to the statements of principle in NW Frozen Foods. Barker J did likewise in Transpacific Industries at [221], as did Collier J in Comcare v Commonwealth at [38] and Goldberg J in Australian Competition and Consumer Commission v SIP Australia Pty Ltd [1999] FCA 858.

36    The criminal law has developed the parity principle in relation to the sentencing of co-offenders. The principle was explained by the plurality (French CJ, Crennan and Kiefel JJ) in Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [28]:

“Equal justice” embodies the norm expressed in the term “equality before the law”. It is an aspect of the rule of law. It was characterised by Kelsen as “the principle of legality, of lawfulness, which is immanent in every legal order.” It has been called “the starting point of all other liberties.” It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:

“Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.” (emphasis in original)

Consistency in the punishment of offences against the criminal law is “a reflection of the notion of equal justice” and “is a fundamental element in any rational and fair system of criminal justice”. It finds expression in the “parity principle” which requires that like offenders should be treated in a like manner. As with the norm of “equal justice”, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.

(Citations omitted)

As can be seen, the parity principle reflects the desirability of there being consistency in punishment. It expressly acknowledges, however, that different sentences may be imposed even upon co-offenders in order to reflect different degrees of culpability and different personal circumstances.

37    The culpability of contravenors of ss 16 and 17 of the OHS Act will also vary from case to case. It is improbable that any two cases will be exactly similar. Further, the personal circumstances of contravenors whose contraventions may otherwise be broadly similar are likely to differ. To my mind, this militates against the penalties imposed in previous cases informing in a significant way the penalty to be imposed in the present case. I accept, however, that penalties which the Court has previously considered appropriate may be relevant in a general way to the determination of a penalty which is proportionate.

Objective seriousness

38    The objective seriousness of a contravention is usually the most significant consideration in determining an appropriate penalty: Trooper Lawrence at [116]; Transpacific Industries at [144]. The penalty imposed should be proportional to the respondent’s culpability and not exceed that which is commensurate with the contravention: DFWBII v Stephenson [2014] FCA 1432 at [96].

39    It is commonly the case that it is an incident resulting in death or injury which reveals a contravention and prompts Comcare to bring proceedings against the contravenor. However, the consequences of an incident do not, by themselves, indicate the seriousness of the contraventions involved: Trooper Lawrence at [120]; DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55. The contraventions of ss 16 and 17 in the present case exist because of Airservices’ failure to give the appropriate training and to make an appropriate risk assessment. Those contraventions had occurred and were complete before the incident on 7 August 2011 had occurred. Had Airservices’ omissions been known, for example, on 6 August 2011, proceedings could have been brought against it then in respect of those contraventions.

40    Despite this, the nature and circumstances of incidents which do occur, and their consequences, may indicate the seriousness of the risk to health or safety against which the contravenor should have taken safeguarding steps: Trooper Lawrence at [120(iv)], [123]. That is because the determination of what is “reasonably practicable” in a given case takes account of both the prospect of a risk of harm being realised, and the gravity of the possible consequences should it be realised: Comcare v Transpacific Industries Pty Ltd [2012] FCA 90 at [57]. In addition, the incident which did occur often provides a practical illustration of what could have been foreseen and of the steps which could have been taken to prevent it and like occurrences.

41    The fire truck involved in the collision on 7 August 2011 was a Rosenbauer Panther Ultra Large Fire Vehicle Mark 8 weighing, when fully laden, over 30 tonnes. It is one of the 96 Ultra Large Fire Vehicles in the ARFFS fleet. These vehicles are by their very nature much larger than the majority of other vehicles driven on public roads, so that the potential for serious injury and damage if they come into collision with another vehicle or a pedestrian is obvious.

42    Given the nature of ARFFS’ functions, most of the driving of its fire trucks occurs at airports, and not on public roads, let alone on public roads under emergency conditions. In the 10 years before August 2011, ARFFS had responded to approximately 8,000 events per year. The majority of these events occurred within airports and, accordingly, in secure fenced areas to which the Australian Road Rules (ARR) were inapplicable. The majority of the remaining events to which ARFFS responded were still within the precincts of the various airports in places in which speed limits are low, and where ARFFS drivers are familiar with the local topography and hazards and do not travel at high speeds.

43    However, in the 10 years before August 2011, ARFFS’ fire trucks had responded on 227 occasions to requests for assistance which involved them driving on public roads and often under emergency conditions. These responses occurred pursuant to Memoranda of Understandings and Memoranda of Agreements (MOUs) into which ARFFS had entered with the various State and Territory fire brigades. Pursuant to these MOUs, ARFFS provided “mutual aid” and assistance to local State and Territory fire services by responding to off-airport incidents upon request. The ARFFS response on 7 August 2011 was pursuant to a request made by NTFRS because it (ARFFS) had specialist equipment appropriate for use at the Wyuna fire.

44    Airservices acknowledged that it had not provided its personnel with any specific instruction or training on how to enter safely an intersection against a red light when travelling under emergency conditions. In particular, it acknowledged that it had overlooked the risks associated with its fire trucks not complying with red lights when operating on public roads under emergency conditions. It accepted that it should have identified, assessed and controlled those risks.

45    The reality of these risks is illustrated by the fact that, although Mr Norris was an experienced and well-trained firefighter (having worked with Airservices for 23 years), the driving of a fire truck on a public road under emergency conditions was not a task with which he was familiar. In fact, 7 August 2011 was the first time that Mr Norris had driven a fire truck under emergency conditions on a public road. That circumstance underlined the need for him and other Airservices employees to have been given appropriate training.

46    Another indication of the shortcomings in the training provided by Airservices to its drivers lies in the circumstance that, at the time of the incident, it believed, mistakenly, that its vehicles and employees had exemptions from complying with the ARR contained in the Northern Territory Traffic Regulations when its fire trucks were driven under emergency conditions. Had they been so exempt, it would not have been necessary for the fire truck on 7 August 2011 to comply with the ARR 56 requiring it to stop at a red light, providing that the driver was taking reasonable care and it was reasonable that the Rule should not apply. Airservices has since sought the relevant exemption in the Northern Territory. This was granted in January 2012.

47    Counsel for Airservices referred to rr 78 and 79 in the ARR:

78    Keeping clear of police and emergency vehicles

(1)    A driver must not move into the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm.

…

(2)    If a driver is in the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm, the driver must move out of the path of the vehicle as soon as the driver can do so safely.

…

(3)    This rule applies to the driver despite any other rule of the Australian Road Rules.

79    Giving way to police and emergency vehicles

(1)    A driver must give way to a police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm.

…

Notes

…

2    For this rule, give way means:

(a)    if the driver is stopped – remain stationary until it is safe to proceed; or

(b)    in any other case – slow down and, if necessary, stop to avoid a collision;

- see the definition in the dictionary.

(2)    This rule applies to the driver despite any other rule that would otherwise require the driver of a police or emergency vehicle to give way to the driver.

48    As can be seen, ARR 78 and 79 impose obligations on drivers of vehicles in the vicinity of an emergency vehicle (such as the fire truck), and not on the drivers of emergency vehicles themselves. The ARR provide part of the context in which the conduct leading up to the collision on 7 August 2011, and the contraventions of Airservices, are to be assessed.

49    Airservices recognised, quite properly, that ARR 78 and 79 did not relieve it of an obligation to make a proper assessment for risks for its own employees and others when its fire trucks were driven on public roads under emergency conditions, and to provide proper training in respect of them. These included the risk that drivers of other vehicles may not see or hear the approach of the fire truck, or see and hear it when it was no longer possible to comply with ARR 78 and 79 or, for some other reason, not comply with the obligations they impose. Such risks are well recognised. They help explain the commonly observed practice of emergency service vehicles stopping or slowing before entering an intersection so as to check that all approaching vehicles are in fact giving way to them. The provision of instructions and training by Airservices to its employees to this effect would have been straightforward and relatively simple.

50    In the present case, there is good reason to conclude that, had Airservices made a proper risk assessment and given its employees appropriate training in driving under emergency conditions, the employees in the fire truck on 7 August 2011 would have exercised greater care before entering the intersection. In this way, the risk of fatalities and injury arising from a collision between the fire truck and another road user may have been averted.

51    Airservices’ contraventions are objectively serious because it failed to recognise and act on what was plainly a reasonably foreseeable risk and one which, if realised, was capable of producing very grave consequences for its own employees and other road users.

52    Nevertheless, it is appropriate to keep in mind that, in a case like the present, the contravenor is not being punished directly for the consequences of the collision: DPP v Vibro-Pile at [12]; Oaten v Engineering Employers Association SA Group Training Scheme Inc [2006] SAIRC 70 at [53].

53    I mention that following the incident, Mr Norris was charged with offences under r 59(1) of the ARR (proceeding through a red traffic light), s 30(1) of the Traffic Act (NT) (dangerous driving) and s 174F of the Criminal Code (NT) (dangerous driving causing death). Those charges were withdrawn by the Director of Public Prosecutions in the Northern Territory on 15 November 2012.

Other relevant circumstances

54    The evidence indicates that ARFFS did provide extensive training to its employees, including in relation to driving on public roads. In particular, ARFFS fire fighters had been trained to look for and to verbalise any obstacles in the vicinity of their moving vehicles. It was an agreed fact that all members of the crew in the fire truck on 7 August 2011 gave effect to this training. As they approached the intersection they looked for and spoke to each other about the presence of vehicles in and around the intersection. All three crew members saw the Triton utility approaching the intersection but none perceived it as a hazard which should cause the fire truck to stop or slow down. In particular, each of Mr Williams and Mr McCagh saw the Triton utility and thought that it was slowing down and would stop. It is possible that a curve in Tiger Brennan Drive which the Triton utility negotiated immediately before the collision may have contributed to an illusion that it was slowing, in apparent recognition of the fire truck’s approach.

55    At the time of the incident on 7 August 2011, ARFFS had two main policy documents relating to the driving of its vehicles. These were its Aviation Fire Fighting Manual – ARFF Vehicles – General (the Manual) and the Standard Operating Procedure 022 – Responses to Emergencies – Off-Airport (SOP 022). The Manual provided general information about the driving of ARFFS vehicles and some general directions about what was expected in the driving of the vehicles both on and away from airports. SOP 022 dealt only with the procedure for seeking approval to attend incidents off-airport at the request of local authorities.

Mitigatory circumstances

56    There are a number of circumstances which operate in mitigation of the penalty to be imposed on Airservices. It has no record of previous contraventions of the OHS Act or of any counterpart legislation.

57    Airservices has expressed its sorrow and regret to the surviving victims and their families. It did so long ago and not just in the course of the submissions on penalty to this Court. It is evident that Airservices has conducted itself in relation to the surviving victims and their families with genuine compassion and sorrow. I note that a senior employee of Airservices made a public statement of apology and regret on its behalf at the Coroner’s inquest held in May 2013. It has repeated those statements in the submissions to this Court. I accept these statements as sincere. I note that Airservices has taken a number of steps to give effect to its contrition.

58    As noted earlier, Airservices admitted at the earlier opportunity the contraventions alleged by Comcare. This was consistent with its expressions of contrition and reflected a willingness to facilitate the course of justice in relation to its contraventions. This is a significant matter of mitigation and by itself warrants a significant reduction in the penalty which would otherwise be appropriate.

59    Since 7 August 2011, Airservices has addressed, conscientiously and diligently, the deficiencies in its training and risk assessments and has sought to identify any other shortcomings in its equipment and systems. In particular, it has undertaken itself, or has commissioned others to undertake, several investigations and reviews in respect of matters arising from the incident. These have not been confined to the particular omissions constituting the contraventions which are the subject of the present proceedings. The investigations and reviews which it has commissioned are:

(a)    an internal report by its own Safety and Assurance Group dated 15 December 2011 in relation to the legislative, risk and safety issues revealed by the incident;

(b)    an expert motor vehicle cash report by Grant Johnston Consulting Engineers in relation to the cause or causes of the incident and recommendations as to the steps which it could take to minimise the risk of similar incidents in the future. An initial report was provided on 22 November 2012 and a supplementary report on 13 May 2013;

(c)    an assessment by Ray Miller Pty Ltd of any mechanical or other technical failures which may have contributed to the incident, as well as of repairs to be carried out to the fire truck to make it mechanically and structurally safe for operational use. This report was provided on 15 April 2012;

(d)    a report by John Black of Driving Management Australia in relation to ARFFS’ driver training regime, driving policy and associated procedures relating to the driving of ARFFS vehicles. This report was provided on 10 August 2012;

(e)    a report from John Killeen of Ambulance Visibility as to the efficacy of the lights, sirens, colourings and marking of its fire trucks, including recommendations for improving visibility and audibility. The report was provided on 13 March 2013.

60    Airservices took other action as well. Shortly after 7 August 2011, it informed each State and Territory authority with which it had an MOU that it would not respond to any requests for assistance until it had addressed the issues arising from the incident of 7 August 2011 to its satisfaction. At the same time, Airservices issued an interim direction to all its employees requiring compliance with all road rules at all times, irrespective of whether they were driving on a public road under emergency conditions.

61    The Northern Territory Coroner conducted an inquest into the incident. Airservices cooperated responsibly and thoroughly with the inquest and has implemented many of the recommendations made by the Coroner in his report.

62    Airservices has acted in accordance with the recommendations in the reports and reviews it has commissioned. In particular, in conjunction with Mr Black, it has revised the Manual and the SOP 022 and has developed a revised driving policy. Its revised SOP reflects inputs from a number of sources, including recommendations in the Black and Johnston Reports, information derived from the driving policies and/or associated documents from each State and Territory fire service, information derived from peak international aviation firefighting bodies, and information derived from the United States National Fire Protection Association Standard. Before finalising the revised SOP, ARFFS had the document reviewed by a senior officer in the Victorian Country Fire Association and consulted with Comcare itself to obtain feedback from a workplace health and safety perspective.

63    It is an agreed fact that the revised SOP contains prescriptions with respect to the training and licensing requirements for operators of ARFFS vehicles, the exemptions from compliance with the ARR which have been granted and the manner in which those exemptions are to be applied in practice, the responsibilities of the officer in charge of the vehicle responding under emergency conditions to an incident, and the procedures to be adopted in such circumstances.

64    In addition to these steps, Airservices has undertaken a number of other actions. It has developed and implemented an enhanced driver training program involving both theoretical and practical elements which all drivers of its vehicles must undertake; and it has reviewed the configuration and profile of the Rosenbauer Mark 8 vehicles resulting in modifications to improve visibility and recognition, including by repainting all of its ARFFS vehicles a lime green colour.

65    Finally, I note that Airservices cooperated fully and frankly with all independent investigations concerning the incident on 7 August 2011. I respectfully agree with the following assessment made by the Northern Territory Coroner of Airservices’ response:

There is little doubt that Airservices Australia has responded to this tragedy in a thoughtful, thorough and determined way. The management of that organisation [has] been humble and willing to admit the mistakes that were made and the need for improvement. The gravity with which they view their task is reflected in the number of excellent and detailed reports commissioned on their behalf and then provided without hesitation to the inquest and interested parties.

66    In my opinion, it is appropriate to have regard to the identified matters of mitigation. They go directly to the extent to which the penalty imposed should reflect elements of specific deterrence. It would not be appropriate to conclude that the penalty need not reflect specific deterrence at all, but the conduct of Airservices since 7 August 2011 indicates a well-developed acceptance by it of the need for vigilance on its part in relation to matters of occupational health and safety. Of course, considerations of general deterrence remain important.

The assessment of penalty

67    The circumstances which I summarised earlier indicate that the contraventions of ss 16 and 17 by Airservices were undoubtedly serious. Airservices failed to recognise and assess, let alone provide appropriate training to its employees in respect of, risks which were reasonably foreseeable. In hindsight the risks seem obvious, but even without that benefit, they should have been recognised. They were of a kind which could not be regarded as insignificant because of their potential to result in multiple deaths and severe injuries if realised. I repeat, however, that Airservices is not being penalised in these proceedings for the deaths and injuries themselves.

68    Airservices has responded to the incident of 7 August 2011 in a responsible and conscientious manner. It is not easy to identify what more it could have done by way of facing up to its responsibilities.

69    Airservices is entitled to a significant reduction in penalty by reason of its early admission of its contraventions and its frank cooperation with the investigations arising from the incident.

70    In the circumstances, I consider that a penalty of $160,000 should be imposed in respect of Airservices’ contravention of s 16(1) of the OHS Act. That is the penalty which I impose. The conduct constituting the contravention of s 17 is the same conduct constituting the contravention of s 16(1) and, accordingly, it is inappropriate to impose any further penalty.

71    In summary, in addition to the declarations sought by Comcare, a penalty of $160,000 is imposed on Airservices. It is also to pay Comcare’s costs of and incidental to these proceedings.

Associate:

Dated:    22 April 2016