Comcare v National Gallery of Australia

REASONS FOR JUDGMENT 1 On the afternoon of 14 February 2005 a temporary display wall of some five metres in height fell in the course of a temporary exhibition being set up at the premises of the respondent, National Gallery of Australia. The fall of the wall was caused by the operation of a mechanical pallet stacker by an employee of a company, Designcraft Furniture Pty Ltd (Designcraft), which had been engaged by the respondent to undertake work in connection with setting up that temporary exhibition. Two other employees of Designcraft were bracing the walls in the vicinity. Hence, one was injured by reason of the fall, and another may have been injured. Designcraft was a contractor within the meaning of s 9A of the Occupational Health and Safety Act 1991 (the Act). 2 By reason of the operation of s 16(4) of the Act, the obligations of an employer apply also in respect of persons who are contractors in relation to certain matters over which the employer has control. Hence, after an investigation, these proceedings have been brought for a penalty against the respondent for breach of the Act. Upon the examination, the essence of the defaults on the part of the respondent, leaving aside the liability for the action of the employees of the contractor, sprang from the failure to appoint one single project manager to manage the work to be performed and from the provision of access or work permits to Designcraft and its employees to carry out work that had not been assessed for risks to health and safety or reviewed and approved by the respondent's employees. 3 The respondent has accepted that it breached the Act, and the parties have agreed upon a statement of facts which has become Exhibit A in the proceeding. Exhibit B in the proceeding is a document referred to in that statement of agreed facts. The statement of facts and the incorporated documents set out in considerable detail the circumstances surrounding the incident itself, the arrangements made with the contractor, the investigation of what occurred, and what has occurred thereafter to ensure that this does not happen again. The parties are agreed that in addition to a declaration as to breach, there should be a pecuniary penalty ordered in the sum of $20,000. 4 In support of the appropriateness of that figure, I am invited to approach what is put forward along the lines discussed by the Full Court in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993, [2004] FCAFC 72. That, of course, was a case under a different Act from that which is involved here, and an Act with different objectives. However, insofar as it dealt with the manner in which the Court should approach a statutory penalty where there is an agreement between the parties as to the appropriate penalty, that decision does provide appropriate guidance. I have also been referred to other authorities dealing more closely with questions of occupational health and safety including the recent case of Comcare v Commonwealth of Australia (2007) 162 IR 407, [2007] FCA 662, where Madgwick J looked at a number of the factors which have been regarded as relevant by courts dealing with similar legislation in other jurisdictions. 5 The maximum penalty which might be involved is $242,000. That, of course, is a figure reserved for the most serious of cases. The parties have put forward a number of reasons why $20,000 is appropriate in this particular case, justifying the significant discount from the maximum penalty. The submissions on behalf of the applicant, in addition to explaining the background of the contravention and how it arose, dealt with the actions taken by the respondent subsequent to it; the report by Comcare and, in relation to the matters of penalty, spoke of the objects of the Act; the maximum penalty; deterrence; the seriousness of the contravention; the foreseeability of risk; the admission of contravention at an early stage; the fact that there is no prior record of the respondent contravening the Act; its cooperation with the Comcare investigation; its implementation of all of the recommendations made to it; and, whilst one cannot downplay the serious risks involved, the fact that the injuries were fortunately relatively mild. 6 The respondent has, of course, underlined the factors which would support a significant discount from the maximum. It is submitted that there was no systematic failure by the employer to address the relevant risks. The risk was caused by reason of inadvertence in the conduct of the employee of the contractor concerned who was driving the mechanical stacker. It is true that there was no direct involvement of the respondent in the supervision of that employee, but, nonetheless, there was the failure to take steps to ensure that there was an assessment of what was to take place. There is some suggestion that even if the paperwork had been attended to, the accident might still have happened, but I do not think I can take that into account. I have to assume that carrying out the system would at least seriously minimise the chances of the risk occurring. 7 The respondent has also stressed that the contractor in question and its employees possessed the relevant expertise and experience. The particular workman involved, who was the project manager at the time, was formerly employed by the respondent as manager of its workshop and had knowledge of the kind of work involved. It is submitted that it is reasonable to take into account on penalty the skill and expertise of the contractor including in relation to appropriate safety precautions. The respondent stresses not only the lack of any previous contravention, but the significant effort and resources which are devoted by the respondent to meeting those obligations. 8 All things considered, I am satisfied that the pecuniary penalty proposed is appropriate. As the cases indicate, it is not so much a question of me deciding what figure I would independently propose and then seeing whether it accords with the figure proposed. A common sense approach is to take the agreed figure and give consideration to whether it is within the range of appropriate figures. In my opinion it is. I make the orders set out in the draft order which I have initialled and placed with the papers. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.