Penalty
264 The parties accepted, on the basis of the authorities cited above in each of their written outlines of penalty submissions and in their oral submissions, that a penalty which reflects the objective seriousness of the contraventions should be imposed in order to give effect to the objects of the OHS Act and to maintain public confidence in the Act as a means of regulating workplace health and safety.
265 As has been accepted by the authorities, the purpose of a civil penalty is to provide both general and specific deterrence to prevent contraventions of the OHS Act, as well as to give the community and, in particular, relevant employees, confidence that the Act will be and is taken seriously.
266 The various factors that might be considered in making what is, in the end, an "instinctive synthesis" of the circumstances and the appropriate penalty to be imposed to reflect the objective seriousness of the contravening conduct, have been set out above.
267 Accordingly, it is appropriate consciously to consider:
what penalty will compel attention to the legislation to ensure employees, while at work, will not be exposed to risks to their health and safety;
whether the risk of injury was foreseeable even if the precise cause or circumstances were not;
whether the injury is not only foreseeable but actually foreseen and an adequate response to that risk was not taken;
the gravity of the consequences if an accident is to occur;
whether there has been a systemic failure by an employer to appropriately address a known or foreseeable risk;
the need for general deterrence and specific deterrence;
the need for employers to take all practicable precautions to ensure safety in the workplace, implying constant vigilance;
the levels of the maximum penalty set by the legislation as indicative of the seriousness of a contravention under consideration;
any neglect of simple, well known precautions to deal with an evident and great risk, which would take a matter towards the worst case category; and
as noted above, the objective seriousness of the offence which without more may call for the imposition of a substantial penalty to indicate the social and industrial policies of the legislation.
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.
270 In this case, as found above, the contraventions found were the result of foreseeable events, in the sense that the development of brake defects was foreseeable, and a serious accident was foreseeable as a possible consequence of failing to have a system of checking and supervision to ensure that any brake defects were identified in a timely way.
271 It was also foreseeable that a failure to supervise a particular employee who, as a mechanic, had been the subject of warnings, could produce safety issues.
272 Here, one might acknowledge that it took some time for the actual cause of the brake problems that led to the fatal incident to be discovered. However, that observation only serves to reinforce the fact that good systems must be in place, otherwise subtle defects may not be discovered until too late.
273 It is not, as stated above, appropriate to submit that because the truck was considered to be "new", or relatively "new", that some different level of maintenance and inspection was to be permitted. The simple fact is, as the tragic circumstances of this case demonstrate, a failure to properly maintain and inspect a truck of this sort, that is used regularly and carries with it great weight and momentum in the event that it has to stop suddenly, must be the subject of careful, continued inspection.
274 The fact that there was no proper process to accurately record, review and analyse the thickness of brake pad linings, which if it had existed may have given an important clue to a problem in this case, should also be noted.
275 This is a case, therefore, where there was not some deliberate fault by a particular person or failure to do something extremely obvious that caused the fatal incident, but one where the failure of the system to work properly led to the collision and the fatal incident. There needed to be a properly thought-out system of supervision, including with respect to brake linings, in place at material times, and there was not. There needed to be proper adherence to checklists and to have checklists which, perhaps, more fully and systematically identified all the various things that needed to be investigated, and there was not. In this case, there was also a need to ensure that a particular mechanic employed was adequately supervised, given that his work had been noted as less than satisfactory and a warning had been given to him previously.
276 The contraventions of 28 February 2011, which are the subject of the first of the proposed declarations, are, objectively, very serious.
277 This is a case where, if the truck's brakes were not properly serviced, an accident of the sort that occurred in the fatal incident might well occur. The fact that a person died as a result of that incident is not of itself the basis upon which a penalty is imposed, but in this case the fact that someone did die highlights the seriousness of the contraventions.
278 Transpacific is a large company. It accepts the need for safe systems. It recognises that it must have safe systems. Here it has failed its own recognition of the need to meet high standards.
279 While it is not alleged by Comcare and the Court does not find that the contraventions were deliberate, the fact that Transpacific did not have adequate systems in place must be emphasised. A penalty that reflects the seriousness of Transpacific's failure to provide an adequate system is required both as a specific deterrent to Transpacific, and as a general deterrent to others, to remind them how utterly important safe systems of work are.
280 In this case, Comcare has filed what may be described as victim statements by members of the family of Mrs Ross, who died, as well as by Ms McMerrin, who was injured as a result of the collision with the van. As may be expected, the family of Mrs Ross are utterly devastated.
281 The purpose of the imposition of civil penalties in this case is not to extract some form of retribution against a contravening party or to achieve some form of compensation against them; there are other mechanisms of the law that provide for those outcomes. The purpose of the civil penalty regime, as noted above, is ultimately to ensure that the regime of occupational health and safety provided for by the OHS Act is met so that people at work and people in the public, who might be affected by workplace activities, are not placed at risk.
282 In this case, the fact that Mrs Ross was killed and Ms McMerrin was injured may be taken into account, because this emphasises the seriousness of the risk taken when safe systems are not observed.
283 Transpacific has expressed real remorse in relation to what happened in this case. It has cooperated with Comcare in agreeing a statement of facts and in putting proposed declarations before the Court. It has also made changes to its servicing system to provide specificity as to the checking of slack adjusters and the measurement of brake pad thicknesses.
284 However, as Comcare submits, that it has done these things is what one would expect not only after the event but, ideally, before the event so that it did not occur.
285 In one sense, reducing the weight of these mitigating factors is the fact that Transpacific by its submissions endeavoured to reduce its responsibility for its contraventions by blaming its driver for failing to take actions which might, it says, have avoided the fatal incident. I have rejected those submissions.
286 Taking all of the above factors into account, including the seriousness of the contraventions and the circumstances in which they occurred, but bearing in mind that there was no deliberate conduct in this case, and the other factors referred to, I consider the contraventions should attract a pecuniary penalty towards the higher end of the scale, at about 75% of the scale.
287 The maximum penalty provided by the OHS Act for each contravention at material times is 2,200 penalty units. The relevant amount for a penalty unit, at material times, was $110. That means that a maximum of penalty of $242,000 might be imposed in respect of each relevant contravention.
288 Having regard to the fact that the first declaration I would make regarding of the contravention of 28 February 2011 comprises one course of conduct, leading to contravention of two separate statutory provisions, it is appropriate that there be just one penalty in respect of the first declaration. If a penalty constituting 75% of the maximum is imposed, a pecuniary penalty of approximately $181,500 would be imposed. In all the circumstances, I consider that to be an appropriate penalty for the contraventions the subject of declaration 1. It is not meant to be some measure of the loss of a human life. It is intended to reflect the seriousness of the relevant contraventions, taking all relevant factors into account.
289 As to the penalty which should be imposed in respect of declarations 2, 3 and 4, concerning the contraventions that followed the fatal incident, I am satisfied that, while there were three separate mechanics and three separate periods of inspection, there was, in effect, one continuing contravention subsequent to the fatal incident.
290 In my view, there should be a single penalty imposed in respect of the contraventions identified in those three declarations. It too should be at 75% of the maximum penalty given the continuing seriousness of the contraventions. So I would impose a further pecuniary penalty in respect of those contraventions in the sum of $181,500.
291 I do not accept the submission made on behalf of Transpacific that the contraventions identified in the four declarations should be treated as one course of events and attract one pecuniary penalty. The fact is that following the fatal incident, the initial course of conduct that led up to the fatal incident effectively came to an end, and the responsibilities of Transpacific in a real way commenced afresh. The need for proper inspection after the fatal incident was called for but was not provided. The improvement notice led to the discovery of the problems. There should be, as I have stated, a separate pecuniary penalty imposed in respect of those contraventions referred to in those three declarations, although treated as one course of conduct.
292 Finally, I take into account the totality principle mentioned in the submissions above. I consider the total of the pecuniary penalties imposed for the two separate courses of conduct to be appropriate in the circumstances, having regard to the totality of the contraventions and nature of the offending involved. I am satisfied that the total penalty imposed, in the sum of $363,000 for the contravening conduct taken overall, is appropriate.
293 As a matter of general and specific deterrence the total penalty should bring home to employers generally and to Transpacific in particular the importance of remaining ever vigilant in maintaining systems of work to the highest possible standards.