Comcare v Transpacific Industries Pty Ltd [2015] FCA 500 | Case summary

Comcare v Transpacific Industries Pty Ltd [2015] FCA 500 | Case summary | Zoe

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The fatal incident 18 On 28 February 2011, Mr Meotti commenced work at about 6.30 am at Transpacific's depot on Camboon Road, Malaga. He walked to the truck, and undertook a prestart procedure, which involved checking the oil and water, and then starting the truck, to check the indicators and the beacons. He then walked around the truck, checking the tyres, the lights and the fire extinguisher, and making sure all the cameras were working. 19 Mr Meotti then drove the truck out of the yard of the depot. As he was doing so, he checked the brakes of the truck, to make sure they felt okay, and he found there was nothing unusual. 20 Mr Meotti then drove the truck to Bassendean, where he conducted a domestic rubbish collection round, collecting domestic rubbish from the front lawns of homes and loading it into the truck. 21 When the truck was full, Mr Meotti drove it to the Red Hill Waste Facility, where he deposited his entire load of rubbish. 22 Mr Meotti then drove the truck south-west on Toodyay Road, until he reached Reid Highway, where he turned right and drove north. When he reached the intersection of Reid Highway and West Swan Road in Caversham (intersection), he turned left into West Swan Road, and began driving south-west, with the intention of returning to Bassendean, and conducting another domestic rubbish collection round. 23 At about 11.15 am, Mr Meotti was driving the truck south-west on West Swan Road, between the intersection and the junction of West Swan Road and Suffolk Street, which joined West Swan Road on its north-western side (junction). The distance between the intersection and the junction was approximately 500 m. 24 At the material time: (1) Mr Meotti was driving the truck at a speed of between 65 and 70 km per hour; (2) the speed limit for that part of West Swan Road was 70 km per hour; (3) West Swan Road at that point was a sealed single carriageway, separated by a broken white line, which carried traffic travelling both south-west and north-east; (4) the road was smooth and dry, and visibility was good; (5) each of the lanes of West Swan Road was only wide enough for one vehicle, with some room· on either side, and a vehicle which was stationary in a lane could only be passed on the left by the passing vehicle driving onto a gravel verge on the side of the road; (6) to the south-east of the verge on the south-eastern side of West Swan Road, approaching the junction from the north-east, was a light pole, and a stabiliser post which supported and stabilised another pole on the northern corner of the junction; and (7) Mr Meotti was driving the truck approximately two car lengths behind a white sedan, which was also travelling south-west on West Swan Road, at approximately the same speed as the truck. 25 As the sedan approached the junction, it suddenly swung around very quickly and, without warning or indicating, veered to the left of the road, to pass on the left the Ford van, registered number 9JY 043, which Mr Meotti then saw was stationary in West Swan Road, approximately opposite the junction, facing south-west. 26 Immediately when Mr Meotti saw the van, he knew that, unless he braked heavily and immediately, or steered the truck to the left of the van, and onto the verge, the truck would collide into the rear of the van. Mr Meotti believed that there was insufficient room between the van and the pole and the stabiliser post to enable him to pass the van safely on its left, without colliding into the pole and/or the stabiliser post. For that reason, he immediately and with full force, applied the service brakes of the truck, and made no attempt to steer to the left of the van. 27 Immediately after Mr Meotti applied the truck's service brakes, the four rear wheels of the truck locked up and ceased rotating, and the truck began to skid towards the rear of the van. The two front wheels of the truck did not lock up. Mr Meotti did not attempt to steer the truck to the left of the van, because he believed he could not do so without colliding into the pole and/or the stabiliser post. 28 After the truck began to skid towards the van, Mr Meotti did not sound the horn of the truck. 29 The truck continued to skid, and the front left corner of the truck collided with the right rear corner of the van. 30 After colliding with the van, the truck continued to skid into the lane for north-east bound traffic, where the front end of the truck collided with the front right hand corner of the Kia Rio wagon, registration number 1BDJ 094, which was travelling north-east along West Swan Road. 31 By the time the truck collided with the wagon, it had skidded a total distance of 60 m. 32 As a result of the collision between the truck and the wagon, the driver of the wagon, Mrs Ross, aged 71, sustained fatal injuries. 33 The events described above are collectively referred to as the fatal incident. 34 As a result of the fatal incident, Ms McMerrin, the driver of the van, was injured, and was conveyed by ambulance to hospital, where she was immobilised for 12 hours on a backboard, prior to being x-rayed. 35 While Ms McMerrin did not suffer serious injury in the fatal incident, she has suffered ongoing neck pain which has not been resolved. 36 Transpacific duly reported the fatal incident to Comcare.

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Investigations 37 At the time of the fatal incident, the truck was fitted with automatic brake slack adjusters on all its service brakes. 38 An automatic slack adjuster compensates for wear in the brake pad. When an automatic slack adjuster passes a certain rotation distance, it automatically ratchets itself so that the distance between the brake shoe and the brake drum remains constant. 39 In order for an automatic slack adjuster to operate effectively, its control arm needs to be securely fastened to a fixed point. 40 Following the fatal incident, on 3 March 2011, Mr Paul Andrew Kaye and Mr Stuart Douglas Budd of the Western Australian Police Vehicle Investigation Unit carried out a detailed examination of the truck. Following the vehicle examination, Mr Kaye, Mr Budd, and Sergeant Brian Eddy, the Officer in Charge of the Unit, issued to other members of the Western Australian Police, but not to Transpacific, a vehicle examination report, which detailed the findings made following the vehicle examination. 41 In the vehicle examination report, it states that, during the vehicle examination, it had been found that the retaining nut on the control arm of the automatic slack adjuster on the brake on the front right axle of the truck (right slack adjuster) was loose, that the retaining nut on the control arm of the automatic slack adjuster on the brake on the left front axle of the truck (left slack adjuster) was missing, and that dirt was adhering to the thread of the bolt, which would have been covered by the retaining nut, had it been in place. 42 The vehicle examination report states that because the retaining nut on the control arm of the right slack adjuster was loose, and the retaining nut on the control arm of the left slack adjuster was missing, the control arms on the right slack adjuster and the left slack adjuster were not securely fastened to fixed points, and, as a result, the slack adjusters could not properly compensate for wear on the brake pads on the front brakes of the truck. This caused the gap between the brake pad and the brake drum on the truck's front brakes to increase. The truck's front brakes were therefore not properly adjusted (brake defects). 43 The brake defects reduced the efficiency of the front brakes of the truck and reduced the assistance which the front brakes provided to stop the truck, during the fatal incident. 44 Following the fatal incident, members of the Police inspected the scene of the fatal incident, and the truck. They found that: (1) there were four tyre lock-up friction marks on the road; (2) the longest of those tyre marks measured 62 m; (3) the tyre marks separated approximately 33 m after their commencement; (4) after separating, the tyre marks continued for another 28 m, and turned to the right, to be at an angle to the truck's original direction of travel, and across the lane for traffic travelling north-east; (5) the tyre marks led directly to the four rear tyres of the truck; (6) there was lock-up damage to the treads of the four rear tyres of the truck; and (7) there were no tyre marks on the road which led to the two front tyres of the truck. 45 The Police also conducted various tests and made calculations, from which they concluded that: (1) if the truck had been travelling at a speed of 70 km per hour prior to the fatal incident, and if its braking system had been efficient, it would have skidded to a stop after 45 m, which was 16 m less than the overall skidding distance; and (2) it was unlikely that the driver of a heavy commercial vehicle, who adopted driving techniques which reduced heavy braking, where the deceleration rates were within the accepted limits of comfortable braking, would be aware that the vehicle had a braking defect such as the brake defects. 46 Subsequent calculations undertaken by Comcare suggest that, if the truck had been travelling at a speed of 70 km per hour prior to the fatal incident, but had not had the brake defects, it would have stopped 13.6 m short of the point at which it collided with the wagon. 47 Transpacific does not accept that, if the truck had not had the brake defects, it would have stopped 45 m from the commencement of its skid, or 13.6 m short of the point at which it collided with the wagon, but accepts that, if the truck had not had the brake defects, it would not have collided with the van or the wagon.

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After the fatal incident 48 On 28 February 2011, at the scene of the fatal incident, the Police issued a defect vehicle compliance notice to Transpacific, which required Transpacific to repair the accident damage to the front of the truck. 49 After receiving the compliance notice, Transpacific caused the accident damage to the front of the truck to be repaired, in compliance with the compliance notice. 50 Following the fatal incident, the Police Major Crash Investigation Section undertook an investigation of the fatal incident. On 22 June 2011, Senior Constable Adrian Callaghan, a member of the Section, issued a vehicle crash report in relation to the fatal incident. 51 On 28 March 2011, vehicle examiners employed by the Western Australian Department of Transport examined the truck and passed it as roadworthy, although it still had the brake defects. The vehicle examiners did not report the brake defects to Transpacific. Nor was Transpacific aware of the contents of this further vehicle examination report. Transpacific returned the truck to service on or about 28 March 2011, without having detected or rectified the brake defects. 52 After Transpacific returned the truck to garbage collection operations, it caused the truck to be serviced on three occasions, being 1 April 2011 (carried out by a mechanic who signed off as "SW"), 20 April 2011 (by mechanic "Gary") and 9 May 2011 (by mechanic "Trevor") (services). The brake defects were neither identified nor rectified in the services. 53 However, the completed work orders for each of the services contained a box marked "check and adjust brakes", which was ticked, which indicated that, inter alia, the mechanic who serviced the truck had checked the slack adjusters and had found them to be in good working order, even though that was not the case. 54 On 9 May 2011, the Police informed Comcare that the front brakes of the truck had been defective at the time of the fatal incident. 55 On 13 May 2011, Comcare issued an improvement notice (No. 204934 0001) to Transpacific, requiring it to ensure all brakes on its heavy vehicles were serviced and operating in accordance with the manufacturer's instructions. 56 On 14 May 2011, while undertaking works pursuant to the improvement notice, Mr Darren Henderson, a senior heavy duty diesel mechanic employed by Transpacific at its workshop at the depot, inspected the front brakes of the truck and identified and rectified the brake defects.

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Servicing 57 Mr Henderson had also serviced the truck on 21 February 2011, which was the last service performed on the truck prior to the fatal incident. 58 At the time of the last service, Mr Henderson had had over 27 years' experience in fleet maintenance, and held a certificate in heavy vehicle repair. 59 At the time of the last service, the odometer reading on the truck was 16,871 km and the truck's engine clock showed that the truck's engine had been operated for 1,064 hours. 60 At the time of the fatal incident, the odometer reading on the truck was 17,555 km and the truck's engine clock showed that the truck's engine had been operated for 1,106 engine hours. Therefore, between the last service and the fatal incident, the truck had been driven 684 km and its engine had operated for 42 hours. 61 In the completed work order for the last service (work order 5173873), Mr Henderson ticked a box marked "slack adjusters", which indicated that he had, inter alia, inspected the slack adjusters, and had found them to be in good working order. At the time of the last service, Mr Henderson's work was not subject to any oversight or supervision to ensure that the work which he did during the last service was done in accordance with the checklist in the work order. 62 At the time of the last service, Mr Neil Firth was the Leading Hand Mechanic employed by Transpacific at the workshop. He had worked for Transpacific for about six and a half years. 63 At the time of the last service, Mr Firth had been a Leading Hand Mechanic at the workshop for four years and had worked as a mechanic, specialising in trucks and heavy plant, for 31 years. 64 At the time of the last service, Mr Firth's role at the workshop was to coordinate repairs. 65 Mr Firth coordinated repairs to and service of those trucks in the Transpacific fleet that were sent to the workshop for repairs or service. 66 Mr Firth did not review the work actually undertaken by the mechanics. 67 Accordingly, at the time of the last service, Transpacific did not have a system in place by which a supervisor checked work undertaken by mechanics in the workshop, to ensure that the work had been carried out in accordance with the work order which had been issued for that work. 68 At the time of the last service, Mr Michael Milentis was the Workshop Manager in charge of the day-to-day operation of the workshop. 69 Mr Milentis had been employed by Transpacific as a mechanic for 29 years and his role as Workshop Manager was to oversee the work of the leading hands at the workshop. 70 Mr Milentis was not directly involved with the repairs to or the service of trucks in Transpacific fleet while they were on the floor of the workshop.

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Formal warning 76 Less than three months prior to the fatal incident, on 17 December 2010, the State Equipment Manager of Transpacific, Mr David Clarke, and Mr Milentis, served Mr Henderson with a formal written warning, in which they said: This warning letter is issued because it was observed by your Manager your (sic) were committing a breach of the rules that apply while conducting vehicle safety inspections in the workplace, namely, failing to meet and record all vehicle defects during the 100 hr inspection in (sic) summary you have failed to meet the performance standards reasonably expected by the Company. 77 The formal warning also contained the following statement: I refer to previous verbal warnings issued in respect to similar performance situations 78 In December 2010, Transpacific did not have a formal system of monitoring the performance of those of its employees who had received warnings. Any monitoring of the performance of an employee, who had received a warning, was carried out informally. 79 Transpacific has not retained any records which reveal the reason why Mr Clarke and Mr Milentis served Mr Henderson with the formal warning, or the reasons why he received the previous verbal warnings. 80 Neither Mr Clarke nor Mr Milentis recalls the reason why they served Mr Henderson with the formal warning. Nor can either of them recall the reasons why Mr Henderson received the previous verbal warnings. 81 Both Mr Clarke and Mr Milentis believe that, after they had served Mr Henderson with the formal warning, Mr Milentis would have informally monitored Mr Henderson's performance, to ensure that his performance improved. However, neither of them can remember precisely what form that monitoring took, or over what period it occurred. Mr Henderson is still employed by Transpacific in the workshop. 82 Although Mr Firth is, and was, at all material times, the Leading Hand Mechanic in the Workshop, and Mr Henderson's immediate superior, he was not asked at any time to monitor or increase his supervision of Mr Henderson, to ensure that he was doing his work properly.

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Facts, inferences and conclusions 90 Comcare submits the following inferences and conclusions are available to the Court as a result of the statement of agreed facts: (1) it was foreseeable that the truck would develop the brake defects (or something similar), as set out at [53] and [61] above; (2) the brake defects were present at the time of the fatal incident, as set out at [41], [42] and [47] above; (3) the brake defects were present at but were not identified nor were they rectified during the truck's last service on 21 February 2011 or otherwise prior to the fatal incident, as set out at [57]-[61] above; (4) Mr Henderson, the mechanic who failed to identify and/or rectify the brake defects on 21 February 2011, had received a written warning on 17 December 2010 for failing to meet and record all vehicle defects during his inspections, as set out at [76] above; (5) Transpacific had no formal system in place to supervise or monitor Mr Henderson's work following his written warning, as set out at [78] above; (6) the brake defects were a cause of, or at least contributed to, the fatal incident, as set out at [41]-[43] and [45]-[47] above; (7) it was foreseeable that the brake defects (or similar) would be a cause of or contribute to a serious traffic accident, such as that which occurred, as set out at [42]-[43] above; (8) the brake defects were not identified and/or rectified during any of the services carried out on the truck after the fatal incident despite each of those services being carried out by a different mechanic, as set out at [52]-[53] and [611] above; (9) but for the improvement notice issued by Comcare, Transpacific is unlikely to have identified or rectified the brake defects, as set out in [55] and [56] above; (10) Transpacific's instructions to its mechanics after the fatal incident lacked sufficient specificity, in that the work orders to which each of the three mechanics worked merely required them to "check and adjust brakes", as set out at [52] above; (11) Transpacific lacked any system by which the servicing of its vehicles was overseen, supervised or audited, as set out at [67] above; (12) Transpacific lacked any system to either: (a) accurately measure and record brake pad thicknesses; or (b) review and/or analyse recorded changes in brake pad thicknesses as set out at [71]-[73] above; and (13) accurate measurement and recording of the truck's brake pad thicknesses over time and proper analysis of such thicknesses would have identified the fact that the brake pads were, apparently, not wearing as they should which would have allowed Transpacific to carry out proper investigations to determine the basis for that irregularity, as set out at [74] above.

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Submissions as to penalty 96 Comcare seeks four penalties, one for each of the proposed declarations. 97 Clause 7 of Schedule 2 of the OHS Act provides that: Proceedings may be instituted under [the OHS Act] against a person in relation to one or more contraventions of subclause 2(1). However, the person is not liable to more than one pecuniary penalty under this clause in respect of the same conduct. 98 Comcare says the conduct covered by each of the proposed declarations is not (to use the words of cl 7 of Sch 2) the "same conduct" in that, although there are matters which are systemic and which are common to all four time periods, within the period subsequent to the fatal incident, the truck was serviced on three separate occasions but by three different mechanics, none of whom identified or rectified the brake defects. 99 It refers to Trade Practices Commission v Simpson Pope Ltd (1980) 30 ALR 544, where the respondent had engaged in "resale price maintenance" in three States and with three separate retailers. Section 76(3) of the Trade Practices Act 1974 (Cth) (TP Act) at the time was in similar terms to cl 7 of Sch 2. Franki J stated at 556 that: different acts of a supplier, each of which is in contravention of s 48 because it falls within one or more of the categories of acts set out in s 96(3), which take place at different times and in relation to three different customers, are not to be regarded as 'the same conduct' within s 76(3). 100 His Honour also noted that: the words 'the same conduct' in s 76(3) must be more limited in scope than the words 'any similar conduct' which appear at the end of s 76(1). 101 Comcare submits that the same conclusion can properly be reached in the present case - Transpacific's conduct across the contraventions can reasonably be described as "similar" but it is not "the same". 102 Franki J in Simpson Pope went on to impose three separate penalties - one in relation to the conduct in relation to each of the retailers but which covered different contraventions against each of those retailers. 103 In Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (No 2) [2002] FCA 559; (2002) 190 ALR 169, which concerned the imposition of civil penalties under the TP Act, Finkelstein J said, at [38], that it was a "common (but not universal) practice" to "impose a single penalty against each respondent for all contraventions committed by that respondent". His Honour referred to Australian Competition and Consumer Commission v Rural Press Limited [2001] FCA 1065; (2001) ATPR 41-833, a decision of the Federal Court, as providing authority for such an approach (Comcare in its written submissions referred to the Full Court decision in Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236 rather than the decision of the primary judge cited by Finkelstein J. The single penalty issue was not discussed by the Full Court or the High Court on appeal). However, it was not suggested by either Finkelstein J or the Court that such an approach must be followed. Indeed, Finkelstein J noted that "there are decisions to the contrary effect", one of which was the Simpson Pope decision. 104 Comcare submits that there is a proper basis to impose more than one penalty and precedent for such an approach. Should the Court adopt such an approach, it submits, it is necessary that it observes the "totality" principle, described by Finkelstein J in ABB Transmission at [39] as follows: where a penalty is being imposed for a number of offences, it is necessary to ensure that the penalties in aggregate are just and appropriate ... One approach is to determine the appropriate total penalty and then divide that penalty by the number of offences to produce a penalty for each separate offence. The problem with this approach is that it may result in inappropriate individual penalties .... In, the Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228, I said that ... it was permissible to use the division method, even if it produced inappropriate individual penalties.

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Legal principles as to penalty 107 Comcare notes that in Comcare v John Holland Rail Pty Ltd [2009] FCA 771; (2009) 188 IR 415 (John Holland (2009)), I noted, at [134], that the "various remedies available in civil proceedings brought under Pt 1 of Schedule 2 of the OHS Act are all designed to enable the objects of the Act to be realised". 108 Section 3 of the OHS Act sets out the objects of that Act: (a) to secure the health, safety and welfare at work of employees of the Commonwealth ... and of non-Commonwealth licensees; and (b) to protect persons at or near workplaces from risks to health and safety arising out of the activities of such employees at work; and (c) to promote an occupational environment for such employees at work that is adapted to their needs relating to health and safety; and (d) to foster a co-operative consultative relationship between employers and employees on the health, safety and welfare of such employees at work; and (e) to encourage and assist employers, employees and other persons on whom obligations are imposed under the Act to observe those obligations; and (f) to provide for effective remedies if obligations are not met, through the use of civil remedies and, in serious cases, criminal sanctions. 109 As I noted in John Holland (2009) at [135], s 3(g) of the OHS Act evidences a "legislative intention that contravention of the occupational, health and safety principles and duties created by the Act should be sanctioned, in appropriate cases, by civil or criminal orders". 110 Comcare says the task of the Court is to impose a penalty which "reflects the objective seriousness of the contravention, gives effect to objects of the Act and which will maintain the public confidence in the Act as a means of regulating workplace health and safety": see John Holland (2014) at [101]. 111 It notes that in John Holland (2009), I stated at [136], in effect, that the purpose of a civil penalty is to provide general and specific deterrence against breaching the relevant provisions of the Act as well as "give the community, and in particular relevant employees, confidence that the OHS Act is taken seriously". 112 That passage was adopted with apparent approval by McKerracher J in Comcare v John Holland Pty Ltd [2012] FCA 449 (John Holland (2012)) at [43]. Similar comments were made by Siopis J in John Holland (2014) at [104]. 113 Comcare also refers to the Full Court in Post Logistics FC at [43]: "Deterrence, both general and specific, is a fundamental purpose of the role of civil pecuniary penalties". See also [73]. 114 It says the overriding principle in assessing penalty is that the amount of the penalty should reflect the Court's view of the seriousness of the offending conduct in all the relevant circumstances: see Comcare v Commonwealth of Australia [2007] FCA 662; (2007) 163 FCR 207 at [116] (Trooper Lawrence case); John Holland (2009) at [137]. 115 The OHS Act does not contain any provisions which explicitly list the factors which should be taken into account in determining an appropriate civil penalty: see Comcare v Commonwealth of Australia [2012] FCA 1419; (2012) 132 ALD 480 (OC Minchin case) at [95]. Nonetheless, there is a long line of cases in which the Court has used the following set of principles, synthesised by Madgwick J in the Trooper Lawrence case from the "cognate" NSW OHS legislative regime (sometimes known as the Madgwick principles), as a "useful guide" or a "useful foundation or starting point". (1) The penalty must be such as to compel attention to occupational health and safety generally, to ensure that workers whilst at work will not be exposed to risks to their health and safety. (2) It is a significant aggravating factor that the risk of injury was foreseeable even if the precise cause or circumstances of exposure to the risk were not foreseeable. (3) The offence may be further aggravated if the risk of injury is not only foreseeable but actually foreseen and an adequate response to that risk is not taken by the employer. (4) The gravity of the consequences of an accident does not of itself dictate the seriousness of the offence or the amount of penalty. However the occurrence of death or serious injury may manifest the degree of the seriousness of the relevant detriment to safety. (5) A systemic failure by an employer to appropriately address a known or foreseeable risk is likely to be viewed more seriously than a risk to which an employee was exposed because of a combination of inadvertence on the part of an employee and a momentary lapse of supervision. (6) General deterrence and specific deterrence are particularly relevant factors in light of the objects and terms of the Act. (7) Employers are required to take all practicable precautions to ensure safety in the workplace. This implies constant vigilance. Employers must adopt an approach to safety which is proactive and not merely reactive. In view of the scope of those obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the employer in the future. This is particularly so where the employer conducts a large enterprise which involves inherent risks to safety. (8) Regard should be had to the levels of maximum penalty set by the legislature as indicative of the seriousness of the breach under consideration. (9) The neglect of simple, well-known precautions to deal with an evident and great risk of injury, takes a matter towards the worst case category. (10) The objective seriousness of the offence, without more, may call for the imposition of a very substantial penalty to vindicate the social and industrial policies of the legislation and its regime of penalties. See Post Logistics FC at [32(d)], [67]-[69]; John Holland (2009) at [14]-[140]; Comcare v John Holland Pty Ltd (No 2) [2009] FCA 1515; (2009) 191 IR 223 at [36]; Comcare v The Commonwealth of Australia [2010] FCA 1331; (2010) 201 IR 93 (Malu Sara case) at [37]; John Holland (2012) at [43]; Comcare v Transpacific Industries Pty Ltd [2012] FCA 90; (2012) 129 ALD 486 (Transpacific (2012)) at [34]-[36]; OC Minchin case at [97]; John Holland (2014) at [79]. 116 Comcare acknowledges that equally, though, there has been several references to the need for care or caution in applying the Madgwick principles - such a list must not be applied "inflexibly" or become "an impermissible substitute for considering the terms of the legislation in issue or an unnecessary constraint upon a discretion": see John Holland (2009) at [142]; Post Logistics FC at [64]-[68]; Transpacific (2012) at [34]-[35]; the OC Minchin case at [99]. 117 In that regard, Comcare says it is necessary to note four particular matters. 118 First, the Madgwick principles make no mention of matters specific to mitigation of the penalty. As noted by Collier J in the Malu Sara case at [52], citing John Holland (2009) at [143], there are: no statutory entitlements to 'credit' or 'discount' on penalty where a respondent acknowledges fault and indeed co-operates with the applicant through the proceeding, however, as a matter of public policy, such actions will commonly entitle a respondent to additional consideration when penalty is assessed. 119 However, in Transpacific (2012), at [37], I stated that "it is the object[ive] seriousness of the offence that is 'front and centre' and ... factors such as [those noted above] play a more incidental or subsidiary role in the determination of penalty". 120 Further in John Holland (2014), Siopis J held that there was no arithmetical discount to be applied to a penalty for such mitigating factors. In doing so, his Honour followed the Post Logistics FC decision of the Full Court which disavowed the application of principles taken from the law of criminal sentencing at [55]-[56] and [62]. Similarly, in the Malu Sara case Collier J imposed the maximum penalty notwithstanding the positive actions of the respondent following the incident because such actions were no more than one would expect of a Commonwealth department in the circumstances; and because of the manifest seriousness of the shortcomings in the conduct of the respondent leading to the tragic events: at [53]. 121 Secondly, there is no "tariff" to be applied - "penalties are not imposed by reference to penalties in other cases being considered a benchmark": John Holland (2012) at [43]. Rather, in each case, the seriousness of the contravention is the overriding consideration and the facts of each case must be separately considered: John Holland (2009) at [187]; Transpacific (2012) at [57]. 122 Thirdly, as noted above, principles of criminal sentencing do not necessarily find application in setting a civil penalty. Rather, one must have regard to the objects and purposes of the Act: Post Logistics FC at [43]; John Holland (2014) at [67]. Comcares says in Transpacific (2012), at [38], it was held that there is no role for the principle of punishment or retribution as those concepts have no role to play in upholding the objects of the OHS Act, which is the purpose of the imposition of a penalty. The Court notes that, at [38], it was stated: 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. 123 Finally, in the Trooper Lawrence case, Madgwick J held, at [125], that the maximum penalty is reserved for those cases in which there was a conscious decision to flout the law. That has since been doubted. In the OC Minchin case, at [99], Griffiths J stated that the maximum penalty (or an amount close to it) may well be appropriate in a particular case even though there is no conscious or contumelious decision to flout the law, and (as noted above) in the Malu Sara case Collier J imposed the maximum penalty despite an appropriate post-incident response from the respondent.

[20]

Seriousness of offending 124 Comcare notes the "seriousness of offending" is informed by: (1) the foreseeability of the breach; (2) the magnitude of the possible consequences of the breach; and (3) the ease or otherwise with which the breach might be prevented or rectified. 125 As to foreseeability: (1) it is enough for the risk of injury to be foreseeable. It is not necessary for the specific cause or circumstances to be foreseeable: John Holland (2009) at [173]; and (2) foreseeability must not be assessed with the benefit of hindsight: Transpacific (2012) at [59], where it was stated on the facts of that case: 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. 126 Comcare says in the present case, as noted above: (1) the development of the brake defects was foreseeable; and (2) a serious accident was foreseeable as a consequence of the brake defects. 127 As noted by Madgwick J in the Trooper Lawrence case, such foreseeability is a significant aggravating factor. 128 As to magnitude, Comcare say the actual consequences of the breach are not relevant per se in that a penalty need not be greater simply because serious injury or death was a result of the breach. However, where serious consequences (such as a fatality) flow from a breach they "may be illustrative of the fact that the contravention was serious, in that a risk was real and not averted": Transpacific (2012) at [57]. 129 In the present case, Comcare submits, the brake defects were a cause of the fatal incident, which demonstrates that the failure to identify and rectify the brake defects was serious. 130 As to the ease with which the breach might have been averted, Comcare submits Transpacific had no systems in place to: (1) ensure that its mechanics checked that the truck's brakes' slack adjusters were properly secured to their anchor points; (2) accurately record and review or analyse the thickness of brake pad linings; (3) supervise and/or oversee its mechanics; or (4) monitor the performance of mechanics who had received a warning as to work practices. 131 Comcare contends the imposition of any one of those systems would have increased the likelihood that the brake defects would have been identified and rectified and thus averted Transpacific's breaches of the Act. 132 It says this was not a momentary lapse of concentration by Transpacific and that the breaches evidence several systemic failures as set out above. Comcare submits given the centrality of the truck's braking system to the provision of a safe workplace and the absence of risks, the lack of systems to: (1) ensure individual aspects of a truck's braking system were checked at each service; (2) accurately record brake pad thicknesses and review or analyse the results; and (3) provide some formal system of supervision or oversight of its mechanics, particularly when a formal warning has been issued, provides the Court with a proper basis to find that Transpacific turned a blind eye to the risks posed. 133 For these reasons, Comcare submits that the breaches committed by Transpacific are at the top end of seriousness and a penalty should be imposed which reflects that seriousness.

[21]

Deterrence 134 Comcare observes that the Full Court in Post Logistics FC confirmed the centrality of deterrence as a purpose of civil penalties under the OHS Act, describing it as a "fundamental purpose". 135 In a prior decision concerning the same respondent (but which was not the subject of the appeal) - Comcare v Post Logistics Australasia Pty Ltd [2008] FCA 1987; (2008) 178 IR 200 - Flick J, at [36], cited with approval for application under the OHS Act the principles set out by French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 in relation to the imposition of civil penalties under s 76(1) of the Trade Practices Act. 136 In that case, French J was specifically concerned with the "assessment of a penalty of appropriate deterrent value" and listed nine matters, some of which overlap with the Madgwick principles. Of those nine listed matters, Comcare submits the following have particular relevance to the question of deterrence in respect of the present proceedings, as explained below. (1) The size of the contravening company: Transpacific is a subsidiary of Transpacific Industries Group Ltd (TIG) which is an Australian Stock Exchange "Top 100 Company" and employs over 4,500 people across Australia. (2) The deliberateness of the contravention and the period over which it extended: (a) as noted above, although it is not alleged that the contraventions were deliberate, the agreed facts evidence several systemic failures which allow the Court to find that a blind eye was turned to the risks of which Transpacific should have been aware or, at least, failed to respond properly to those risks of which it ought to have been aware; and (b) furthermore, as is noted above, given the three services subsequent to the fatal incident failed to result in any detection or rectification of the brake defects it is open for the Court to properly find that the brake defects were unlikely to be detected or rectified but for the improvement notice issued by Comcare. (3) Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention: There are two significant failings in this regard - (a) the absence of any system of supervision, oversight or audit of mechanics to ensure that they had carried out the tasks as required; and (b) the absence of a formal system by which to monitor the work done by an employee who has been subject to a formal warning for poor performance both of which indicate the lack of a corporate culture conducive to compliance with the Act.

[22]

Mitigating factors 137 Comcare maintains its submission that the breaches warrant a penalty at the top end, notwithstanding that Transpacific has: (1) cooperated with Comcare in agreeing a statement of agreed facts and agreed to the making of the declarations; and (2) made some changes to its servicing system to provide specificity as to the checking of slack adjusters and the measurement of brake pad thicknesses. 138 As to the relevant changes made by Transpacific to its servicing system, Comcare submits that such changes are no more than one ought to expect from an entity such as Transpacific, which runs a large fleet of similar vehicles. It is also noted that other systemic failings - such as the absence of oversight or supervision of mechanics and their work - do not appear to have been addressed. 139 As noted by Siopis J in John Holland (2014) at [90] and [104], even where the Court is satisfied that steps have been taken which considerably reduce the risk of a repeat incident (and which in that case his Honour described as "laudable"), the Court is obliged by the objects of the OHS Act to impose a penalty which incorporates specific deterrence because the requirements of the OHS Act require "constant vigilance" to avoid contravention. 140 While such changes are sometimes included in a list of steps by which a respondent might express its remorse or contrition, Comcare says it is otherwise unaware of any communication with or other steps by which it might be said that Transpacific has expressed its remorse or contrition to Ms McMerrin or the family of Mrs Ross for its role in Ms McMerrin's injuries or Mrs Ross' death - contra the apologies offered in the Trooper Lawrence case at [128]; John Holland (2014) at [30]. 141 Comcare says, in any event, as noted above, mitigating factors are peripheral against the need for a penalty to represent the Court's expression of the seriousness of the breaches and to provide deterrence - both general and specific - and assure the community and employees in particular, that breaches of the OHS regime are taken seriously.

[24]

Transpacific's submissions on penalty 143 As noted above, Transpacific admits the substance of the case brought against it by the Comcare. 144 Transpacific admits that it breached ss 16(1) and 17 of the OHS Act by: (1) failing to take all reasonably practicable steps to protect the health and safety at work of its employee, Mr Meotti; and (2) failing to take all reasonably practicable steps to ensure that persons who were not its employees, and who were near the truck, which was owned and operated by Transpacific in the course of its business, were not exposed to risk to their health or safety arising from the operation of the truck. 145 Transpacific admits that, in particular, it breached ss 16(1) and 17 of the Act by: (1) failing to take all reasonably practicable steps to provide and maintain a work environment, including plant, that was safe for Mr Meotti, and posed no risk to his health and safety; (2) failing to take all reasonably practicable steps to ensure that the control arms on the automatic slack adjusters on the truck's front brakes were securely fastened to fixed points; (3) failing to take all reasonably practicable steps to ensure that the front brakes of the truck were properly adjusted, and that their operation was not compromised, particularly in an emergency; (4) failing to take all reasonably practicable steps to ensure that all mechanics whom it employed, to service and repair trucks in its fleet, were provided with and used a standard gauge to measure the thickness of the trucks' brake pads; (5) failing to provide a means for the systematic review and analysis of the recorded thicknesses of the brake pads of trucks in its fleet; (6) failing to take all reasonably practicable steps to properly supervise and oversee the servicing of trucks in its fleet by mechanics whom it employed; and (7) failing to employ a formal system of monitoring the performance of those of the mechanics whom it employed, who had received warnings for poor work practices. 146 In addition, Transpacific admits that, between 2 and 19 April 2011, between 21 April and 8 May 2011, and between 9 and 13 May 2011, it contravened cl 2(1)(a) and cl 2(1)(b) of Sch 2, Pt 1 of the OHS Act, by breaching ss 16(1) and 17. 147 Transpacific admits that it breached ss 16(1) and 17 of the OHS Act by: (1) failing to take all reasonably practicable steps to protect the health and safety at work of its employees; and (2) failing to take all reasonably practicable steps to ensure that persons who were not its employees, and who were near the truck, were not exposed to risk to their health or safety arising from the operation of the truck. 148 Transpacific admits that, in particular, it breached ss 16(1) and 17 of the OHS Act: (1) after the truck had been involved in a fatal accident on 28 February 2011, by failing to properly inspect the truck, identify that the control arms on the automatic slack adjusters on the front brakes of the truck were not securely fastened to fixed points, and that, as a result, the front brakes of the truck were not properly adjusted, and their operation was compromised, and by failing to rectify these brake defects; (2) by failing to take all reasonably practicable steps to provide and maintain a working environment, including plant, that was safe for its employees, and posed no risk to their health and safety; (3) by failing to take all reasonably practicable steps to ensure that the front brakes of the truck were properly adjusted, and their operation was not compromised, particularly in an emergency; (4) by failing to take all reasonably practicable steps to ensure that all mechanics whom it employed to service and repair trucks in its fleet were provided with and used a standard gauge to measure the thickness of the trucks' brake pads; (5) by failing to provide a means for the systematic review and analysis of the recorded thicknesses of the brake pads of trucks in its fleet; (6) by failing to take all reasonably practicable steps to properly supervise and oversee the servicing of trucks in its fleet by mechanics whom it employed; and (7) by failing to employ a formal system of monitoring the performance of those mechanics whom it employed, who had received warnings for poor work practices. 149 Transpacific agrees that the issues to be determined by the Court are: (1) the number and form of the declarations to be made in respect of Transpacific's breaches of ss 16(1) and 17 of the OHS Act; (2) whether one pecuniary penalty or more than one pecuniary penalty should be imposed on Transpacific for its breaches of the OHS Act; and (3) the quantum of that pecuniary penalty or those pecuniary penalties.

[27]

Facts, inferences and conclusions 152 In response to Comcare's submissions as to facts, inferences and conditions available to the Court, Transpacific says there is nothing in the statement of agreed facts filed in these proceedings which provides any basis for findings as to how or when the brake defects arose. Accordingly, it says there is no basis for a finding that, prior to the fatal incident on 28 February 2011, it was reasonably foreseeable by Transpacific that the truck would develop the brake defects, because the agreed facts deal with a state of affairs after the fatal incident. Transpacific submits that while the statement of agreed facts deals with events prior to the fatal incident, the agreed facts do not provide a basis for it to be found or inferred that the brake defects existed at the time of the last service, but were not identified by Mr Henderson, the mechanic who performed the last service. Therefore, in Transpacific's submission, those facts do not provide a basis either for a finding that the development of the brake defects was reasonably foreseeable by Transpacific, prior to the fatal incident. 153 Transpacific admits that the brake defects existed at the time of the fatal incident. 154 It says the statement of agreed facts does not provide a basis for a finding that the brake defects existed, but were not identified, at the time of the last service. The statement of agreed facts provides that the brake defects were caused by a retaining nut on the control arm of an automatic slack adjuster on the brake on the right front axle of the truck being loose, and a retaining nut on the control arm of an automatic slack adjuster on the brake on the left front axle of the truck being absent. The last service was performed seven days before the fatal incident. In that time, the truck had been driven 684 km. Transpacific notes there is no evidence as to the terrain over which it was driven, nor is there any evidence as to whether or not it would have been possible for one retaining nut to become loose, and another to come off completely, during the time the truck was driven over that distance, and if it were driven over rough terrain. Accordingly, Transpacific submits, there is insufficient evidence to enable it to be found that the retaining nuts were respectively loose and missing at the time of the last service, or in other words, there is no evidence that the brake defects existed at the time of the last service. 155 As there is no evidence that the brake defects existed at the time of the last service, it says it is incorrect to say that Mr Henderson was the mechanic who failed to identify and/or rectify the brake defects on 21 February 2011. However, Transpacific accepts that it may be found that, on 17 December 2010, Mr Henderson had received a written warning from his superiors for failing to meet and record all vehicle defects during a 100 hour inspection of a truck. 156 Transpacific accepts that, prior to the fatal incident, it did not have a formal system to monitor the performance of those of its mechanics who had received a written warning for poor work practices. 157 Transpacific accepts that, because of the way in which the driver of the truck, Mr Meotti, reacted on 28 February 2011, when he realised that the truck was about to collide into the rear of the van, by immediately and with full force applying the service brakes of the truck, causing the rear wheels of the truck to lock up, and the truck to skid, the brake defects were a contributing factor to the fatal incident. 158 It says there is insufficient evidence in the statement of agreed facts to enable it to be concluded that, prior to the fatal incident, it was reasonably foreseeable by Transpacific that the brake defects would cause or contribute to a serious traffic accident. Further, Transpacific says there is no evidence that, prior to the fatal incident, Transpacific was aware of the brake defects, or that it was reasonably foreseeable by Transpacific that the truck would develop the brake defects. 159 Transpacific accepts that, during none of the services carried out on the truck by its mechanics on 1 April 2011, 20 April 2011 and 9 May 2011, were the brake defects identified or rectified. 160 Transpacific does not accept that, had it not been for the improvement notice, issued by Comcare on 13 May 2011, it may not have identified or rectified the brake defects. It says that is speculation. 161 Transpacific does not accept that its instructions to its mechanics, both before and after the fatal incident, to check and adjust the brakes of all trucks that were serviced, were insufficiently specific to ensure its mechanics understood that they were required to check the brakes on all trucks, to ensure that they were properly adjusted, and to adjust the brakes if they were not. Transpacific says that an experienced mechanic would have readily understood what was required if he or she was instructed to check and adjust the brakes on a truck. 162 Transpacific accepts that, at all material times, it did not have a system whereby a supervisor checked all the work undertaken by its mechanics in the workshop, to ensure that each of the mechanics had carried out their work in accordance with the work orders issued to them. Transpacific says that all its mechanics had considerable experience, and supervision of that nature should not have been necessary. Further, Transpacific says that the supervision of that nature would have effectively meant that any service would have to be carried out twice. 163 Transpacific admits that, at the material time, its mechanics used different methods for measuring the thickness of brake pads in its trucks. Transpacific also admits that, at the material time, it did not have any system to review and/or analyse recorded changes in brake pad thicknesses. However, it says there is no evidence that such a system would have assisted the identification or rectification of the brake defects, either before or after the fatal incident. 164 Transpacific does not accept that accurate measurement and recording of the thickness of the truck's brake pads over time, and the proper analysis of that information, would have revealed that the brake pads were, apparently, not wearing as they should, and would have allowed Transpacific to identify the brake defects. It says the facts as to the recorded measurements of the thickness of the brake pads of the truck do not provide a basis for such a finding. It says those facts establish only that there were anomalies in the records of the thickness of the brake pads of Transpacific's trucks, caused by its mechanics using differing methods to measure the thickness of the brake pads. 165 Transpacific says that, on the basis of the statement of agreed facts, it should be found that: (1) at the time of the fatal incident, the truck was relatively new, having been delivered, new, to Transpacific in August 2010; (2) at the time of the fatal incident, the truck had been driven 17,555 km, and its engine had operated for 1,106 engine hours; (3) immediately prior to the fatal incident, and having regard to the speed at which he was driving, Mr Meotti was driving the truck at a speed, and at a distance behind the vehicle travelling immediately in front of the truck, which would not enable him to stop the truck safely in an emergency; (4) when Mr Meotti realised that the truck would collide into the rear of the van, unless he braked heavily and immediately, and thereby stopped the truck before it reached the van, or steered to the left of the van, Mr Meotti chose to apply the service brakes of the truck, immediately and with full force, and made no attempt to steer to the left of the van; (5) if Mr Meotti had steered to the left of the van, rather than only applying the brakes, he would not have collided with the van or the wagon, and the fatal incident would not have occurred; (6) when Mr Meotti applied the service brakes of the truck, the four rear wheels of the truck locked up, and ceased rotating, thereby preventing the rear brakes of the truck from impeding the progress of the truck, and causing the truck to skid; and (7) after the truck began to skid, Mr Meotti did not sound the horn of the truck, to warn the driver of the van of the impending collision, and to give her the opportunity of driving the van out of the path of the truck.

[29]

Penalty 167 Transpacific says that its conduct on 28 February 2011 by: (1) failing to take all reasonably practicable steps to ensure that the control arms on the automatic slack adjusters on the truck's front brakes were securely fastened to fixed points; (2) failing to take all reasonably practicable steps to ensure that the front brakes of the truck were properly adjusted, and their operation was not compromised, particularly in an emergency; (3) failing to take all reasonably practicable steps to ensure that all mechanics whom it employed to service and repair trucks in its fleet, were provided with and used a standard gauge to measure the thickness of the trucks' brake pads; (4) failing to provide a means for the systematic review and analysis of the recorded thickness of the brake pads of trucks in its fleet; (5) failing to take all reasonably practicable steps to properly supervise and oversee the service of the trucks in its fleet by mechanics whom it employed; and (6) failing to employ a formal system of monitoring the performance of those mechanics whom it employed, who had received warnings for poor work practices was, quite clearly, the "same conduct", within the meaning of cl 7 of Sch 2 of the OSH Act, as its conduct was failing to do exactly the same things between 2 and 19 April 2011, between 21 April and 8 May 2011, and between 10 and 13 May 2011. 168 Therefore, it says that it should be held liable for no more than one pecuniary penalty for its contraventions of the OHS Act on that date and during those periods. 169 Comcare says that, notwithstanding the terms of cl 7 of Sch 2 of the OSH Act, it seeks four penalties, one in respect of each of the declarations. 170 Transpacific, says, however, the fact that there are four declarations does not mean that there should be four penalties, if the conduct the subject of each of the declarations is the "same conduct" within the meaning of cl 7 of Sch 2. 171 Comcare suggests that the conduct the subject of the declarations is not the same conduct, although it concedes that there are matters which are systemic and are common to all four time periods. Transpacific, notes Comcare, appears to suggest that the fact that, following the fatal incident, the truck was serviced by three different mechanics employed by Transpacific, none of whom identified or rectified the brake defects, somehow renders the conduct different in each case. However, Transpacific contends that the conduct which contravened the OSH Act was not the failure of the mechanics to identify and rectify the brake defects. It was the failure of Transpacific to take all reasonably practicable steps to ensure that the brake defects were identified and rectified, and its failure to take all reasonably practicable steps to properly supervise and oversee the servicing of its trucks. They were both systemic failures that occurred on all the dates alleged. 172 It notes Comcare seeks to rely on the decisions in Simpson Pope, Rural Press and ABB Transmission. It contends in fact Rural Press and ABB Transmission are authorities for the proposition that, in the imposition of civil penalties under the former TP Act, it was common practice to impose a single penalty for multiple contraventions of the Act. 173 In Simpson Pope, Franki J, in imposing civil penalties for re-sale price maintenance under the TP Act, imposed three separate penalties for three contraventions of s 48 of the TP Act, but that was because of his particular interpretation of various other provisions of the TP Act, and because the conduct occurred at different times, in different states of Australia, and involved three different customers. Transpacific submits that was a very different statutory regime to the regime presently under consideration and, quite obviously, the facts were completely different. It says Simpson Pope is not authority for the imposition of separate penalties under the OHS Act, and cl 7 of Sch 2 is quite clear on its terms.

[32]

Seriousness of offending 176 Transpacific accepts that the objective seriousness of an offence plays the most significant part in the imposition of penalty: Trooper Lawrence case at [116]; Transpacific (2012) at [34]-[36]. 177 As stated by Madgwick J in the Trooper Lawrence case the objective seriousness of an offence will be greater if: (1) the risk of injury was foreseeable by the respondent, even if the precise cause or circumstances of exposure to the risk were not foreseeable; (2) the risk of injury was actually foreseen by the respondent, and it failed to respond adequately to the risk; (3) the magnitude of the possible consequences of the offence was significant; (4) the offence involves a systemic failure by the respondent to appropriately address a known or foreseeable risk, rather than a risk to which persons were exposed because of a combination of inadvertence on the part of an employee, and a momentary lapse of supervision by the respondent; and (5) the respondent had neglected to take simple, well known precautions to deal with an evident and great risk of injury. 178 In this case, Transpacific submits it was, at all material times, unaware of the brake defects. There is no evidence that the brake defects were foreseen by Transpacific, or even that they were reasonably foreseeable by Transpacific. 179 At all material times, it says the truck was comparatively new, and had not been driven for a long distance. There was no reason for Transpacific to think that it had the brake defects, or any other defects which could pose a risk to the health and safety of Transpacific's employees, or others who were near the truck, when it was being driven. In other words, Transpacific submits, there is no evidence that the brake defects existed at the time of the last service. 180 Transpacific accepts it might be said that, in the case of Mr Henderson, Transpacific was aware that he had been warned, in December 2010, for failing to meet and record all vehicle defects during a 100 hour inspection of a truck. However, it says, at the time of the last service, Mr Henderson had over 27 years experience in fleet maintenance and held a certificate in heavy vehicle repair. In addition, Transpacific notes, after Mr Henderson had received the warning, his performance was monitored by Transpacific's Workshop Manager, Mr Milentis, and he was retained by Transpacific as a service mechanic. It may therefore be inferred that his performance improved after the warning. 181 Transpacific submits that the evidence of the warning alone is not sufficient to support a finding that it was reasonably foreseeable by Transpacific that the brake defects would arise, or that Mr Henderson would not identify or rectify them at the last service. It says in any event, there is no basis for a finding that the brake defects existed at the time of the last service. 182 Further, Transpacific says there is no evidence to support a finding that it was reasonably foreseeable by Transpacific that the other mechanics would not identify or rectify the brake defects after the fatal incident. 183 Nor can it be found, it says, that the brake defects were foreseen or reasonably foreseeable by Transpacific between 2 and 19 April 2011, between 21 April and 8 May 2011, or between 10 and 13 May 2011. In Transpacific's submission, there is no evidence that, at any time between 2 April and 13 May 2011, Transpacific was aware of the brake defects or that the brake defects were considered to have been a contributory factor to the fatal incident. Transpacific did not receive a copy of any vehicle examination report, in which the brake defects were described. 184 Transpacific accepts that the magnitude of the possible consequences of its contraventions of the OHS Act, both prior to and after the fatal incident, was significant. It is always a serious matter if the efficiency of the brakes of a vehicle which is put on the road is compromised in any way. However, Transpacific submits that in this case, that must be balanced against: (1) the fact that there is no evidence to suggest that the efficiency of the brakes on the four rear wheels of the truck was compromised in any way; and (2) the fact that the reduction in efficiency of the front brakes of the truck only created a problem when Mr Meotti chose to only apply the brakes, rather than steering to the left of the van, and when the truck's brakes were applied so heavily that all the rear wheels locked up and the brakes on the rear wheels became totally ineffective. 185 Transpacific accepts that it could have prevented its contraventions of the OHS Act, following the fatal incident, if, between 1 April and 9 May 2011, it had amended its form of work order for inspection and servicing of its trucks, by replacing the item "check and adjust brakes" with an item which required the mechanic to check to ensure that all automatic slack adjusters on the truck were operating at maximum efficiency. Transpacific says that is what it did in the second half of 2011, after discovering that the truck had the brake defects, which had not been identified or rectified, and after it had been informed that the brake defects were a contributing factor to the fatal incident. Transpacific also accepts that it was a relatively simple improvement to make. 186 Transpacific also accepts that the failure of three of its mechanics, after the fatal incident, to identify and rectify the brake defects, could possibly have been avoided if it had then had a system whereby the supervisors in the workshop conducted random checks on services carried out by the mechanics, to ensure that the mechanic who carried out the service had actually attended to all items on the work order. Transpacific says it implemented such a system in the second half of 2011. 187 Transpacific says that its amendment of the form of its work order was a direct response to the mechanic's failure to identify and rectify the brake defects between 1 April and 9 May 2011. It was made with the benefit of hindsight. Transpacific says that, other than its knowledge of the events which led to the warning being issued to Mr Henderson, it had no reason to think that its mechanics were not carrying out services thoroughly, and were not checking the operation of the trucks' automatic slack adjusters when they were instructed to "check and adjust brakes". 188 Transpacific accepts that it should always have had a system whereby random checks were conducted on the work done by its mechanics, to ensure that they had fully complied with the work order they had received. 189 However, Transpacific does not accept that the amendment of its form of work order, or the implementation of a system of random checks of mechanical work, would have prevented its breaches of the OHS Act on 28 February 2011. That is because of the lack of any evidence, in its submission, that the brake defects existed at the time of the last service. 190 In response to Comcare's submissions regarding the systems Transpacific ought to have had in place, Transpacific: (1) does not accept that its previous form of work order, which required its mechanics to "check and adjust brakes", was insufficient to enable its mechanics to understand that they were required to check inter alia that any slack adjusters on the brakes were working to their maximum efficiency, and to correct them if they were not; (2) says that that system should have been sufficient to ensure that its mechanics checked to see that the control arms on the slack adjusters were securely fastened to fixed points; (3) does not accept that the accurate recording and review of the thickness of the brake pads on the truck would have assisted it to identify the brake defects; (4) accepts that a system of supervision of its mechanics, in which their work was randomly checked to ensure that they complied with the work orders which they were asked to complete, may have led to the identification and rectification of the brake defects after the fatal incident, but not before; and (5) does not accept that the monitoring of the performance of mechanics who had received a warning for poor work practices would have led to the brake defects being identified after the fatal incident, because there is no evidence that any of the mechanics who serviced the truck after the fatal incident had received a warning. 191 Transpacific says its contraventions of the OHS Act, after the fatal incident, resulted, in part, from inadvertence on the part of its employees. However, Transpacific accepts that its lack of supervision of its mechanics was not a momentary lapse, but a systemic failure. It has sought to correct that by implementing a system whereby its mechanics' work is randomly checked. 192 It contends there is insufficient evidence in the statement of agreed facts to enable the Court to find that Transpacific "turned a blind eye to the risks posed". Transpacific says it is only possible to "turn a blind eye" to a risk, if the risk is known, and that there is simply no evidence that, either before or after the fatal incident, Transpacific was aware of the brake defects, or of the risk which they posed. Nor is there any evidence from which it might be found or inferred that Transpacific foresaw the development of the brake defects or that the development of the brake defects was reasonably foreseeable by Transpacific. Accordingly, in Transpacific's submission, the risk which the brake defects posed was not reasonably foreseeable either. 193 Transpacific says the objective seriousness of the offence should therefore be assessed on the basis that the brake defects were not foreseen and were not reasonably foreseeable by Transpacific, either before or after the fatal incident; and the magnitude of the possible consequences of the offence was significant, but against that must be balanced: (1) the fact that the rear brakes of the truck were not compromised in any way; and (2) the fact that the reduction in efficiency of the front brakes of the truck only became a contributing factor to the fatal incident because of Mr Meotti's decision to brake, rather than steer to the left, and his heavy application of the brakes, which caused the rear wheels of the truck to lock up, so that the rear brakes became totally ineffective to stop the truck; and (3) Transpacific could have prevented the contraventions after the fatal incident by amending its form of work order and having its mechanics' work randomly checked, but that would not have avoided the contravention on 28 February 2011. 194 Transpacific says that the objective seriousness of its offending should be considered to be at the lower end of the range, and that the pecuniary penalty imposed should reflect that.

[33]

Deterrence 195 Transpacific accepts that deterrence is a central purpose of the imposition of civil penalties under the OHS Act. 196 Transpacific also accepts that its size is a relevant factor in deterrence. As observed in Comcare's submissions, Transpacific is a wholly owned subsidiary of TIG which is a "Top 100 Company" on the Australian Stock Exchange. Transpacific notes TIG is one of the largest recycling, waste management and industrial services companies in Australia. It has been operating for 28 years. Transpacific is the employing entity for TIG, and, as such, is responsible for all the employees employed by TIG. Transpacific currently employs approximately 4,200 people. 197 It further notes TIG comprises two business divisions, being: (1) Transpacific Cleanaway, which conducts the business of collection, transportation and disposal of solid waste from commercial, industrial and domestic customers, as well as the operation and management of landfills and recycling facilities; and (2) Transpacific Industrials, which, in turn comprises: (a) "Technical Services", which conducts the business of hazardous waste collection, transportation, processing, recycling and disposal of liquid, sludge and hazardous waste generated by the agriculture, manufacturing, construction, mining and government sectors; (b) "Industrial Services", which conducts the business of industrial cleaning and total waste management solutions for the manufacturing, mining, construction and government sectors; and (c) "Hydrocarbons", which conducts the business of collecting, treating and recycling oil related waste streams in commercial and domestic sectors. 198 TIG operates business units in all states and territories of Australia. 199 TIG was granted its licence under the SRC Act in 2008, and commenced its self insurance program on 1 July 2008. TIG was first listed on the Australian Stock Exchange in 2005. Since that time, TIG has been developed and expanded by using an acquisition strategy, which has included the acquisition of more than 60 smaller waste collection and disposal businesses. Transpacific says that has meant that TIG has been obliged to bring together more than 60 different cultures and operating models into a consolidated and coordinated group and this has presented challenges to TIG across a range of functions, including the management of occupational health and safety. 200 In relation to the need for deterrence in imposing civil penalties under the OHS Act, Transpacific accepts that, when a contravention is deliberate, deterrence assumes greater importance in the assessment of the appropriate penalty. Transpacific notes Comcare does not suggest that Transpacific's contraventions of the OHS Act in this case were deliberate, and neither could it, as there is no evidence that Transpacific knew of the brake defects, and no evidence from which it could be inferred that the development of the brake defects was reasonably foreseeable by Transpacific. 201 Transpacific further notes Comcare suggests that, because the statement of agreed facts establishes that there were several systemic failures by Transpacific, it should be found that "a blind eye was turned" to risks of which Transpacific should have been aware, and to which it should have responded. For the reasons given above, it says no such finding should be made. 202 It says nor is there sufficient evidence to enable it to be found that, but for the issue of the improvement notice, Transpacific would not have identified or rectified the brake defects, and says that is speculation. 203 Transpacific agrees that an issue relevant to deterrence is whether Transpacific has a corporate culture conducive to compliance with the OHS Act. Comcare suggests that the lack of a system of supervision of its mechanics, and the lack of a formal monitoring system for those of its employees who have received a warning for poor work practices, indicate the lack of a corporate culture conducive to compliance with the OHS Act. Transpacific submits that is incorrect. It says at the time of the events the subject of these proceedings, TIG, and, therefore, Transpacific, had made a commitment to occupational health and safety at its highest levels. Transpacific notes that commitment has continued to the present, and is reflected in TIG's Occupational Health and Safety Policy (OHS Policy), which was most recently updated in October 2014. It further notes both TIG and Transpacific have an integrated environment and safety management system certified under Australian and New Zealand Standards ISO 9001, AS/NZS 4801 and AS/NZS ISO 14001. 204 Transpacific submits at the time of the events the subject of these proceedings, TIG and Transpacific had established a number of standard operating procedures, which set out the procedure, responsibilities and documentation relevant to all activities carried out by all employees and contractors of Transpacific. It says those procedures have remained in place since that time. All employees and contractors are expected to perform their duties in accordance with those standard operating procedures. 205 Transpacific also has an established system for regular service and maintenance of its fleet of trucks. At its Malaga depot, this consists of a schedule for regular servicing being generated by a Maintenance Services Co-ordinator (MSC), based on the number of hours each truck has been operated. The MSC provides the service department with work orders, which include a service sheet to be completed by mechanics as part of the process of carrying out inspections and maintenance checks on vehicles. 206 If any defects are detected in inspections, they are identified on the service sheets, which are returned to the MSC. A further work order is then generated by the MSC, requiring the defect to be repaired. Servicing information for each vehicle is recorded on Transpacific's JDE program. 207 Transpacific says at the time of the events the subject of these proceedings, TIG and Transpacific operated a pro-active system of "Zero Harm Observations", whereby potential hazards were identified and dealt with. Additionally, risks and hazards were reported through improvement alerts, which were communicated to site supervisors for corrective action. It says that system has continued to operate to the present time. 208 Further, it notes, also at the time of the events the subject of these proceedings, Transpacific conducted regular training of its employees, including written and practical competency tests, for each standard operating procedure developed, and each employee and contractor was required to complete a company and site induction process. That training has also continued to the present time. 209 For many years prior to the events the subject of these proceedings, TIG reviewed and updated the OHS Policy and associated procedures on an annual basis, through a consultation process involving all occupational health and safety representatives and committees within TIG and its related companies. TIG has continued to review and update the OHS Policy in that way to the present time.

[35]

Remorse 214 Although it contends there is insufficient evidence to establish that the brake defects existed at the time of the last service, and that a mechanic whom it employed, and who carried out the last service, failed to identify and rectify the brake defects, Transpacific says it deeply regrets that, when the truck took to the road on 28 February 2011, it had the brake defects, which were a contributing factor to the fatal incident, and, therefore, to the tragic death of Mrs Ross and the injuries to Ms McMerrin. 215 Transpacific also says it deeply regrets involving its employee, Mr Meotti, in the fatal incident. 216 It notes that immediately following the fatal incident, Mr Meotti was interviewed by the Police, but was not charged with any offence arising out of the fatal incident. After he was interviewed by the Police, Transpacific caused Mr Meotti to be assessed by a doctor. It gave Mr Meotti two weeks' leave from work, and provided him with counselling in respect of the fatal incident. When Mr Meotti returned to work, he was paired with another driver for several days, before being permitted to resume normal duties. Mr Meotti is still employed by Transpacific as a driver of its garbage collection and disposal trucks. 217 Further, Transpacific notes that following the fatal incident: (1) Mr Meotti's supervisor, who was also employed by Transpacific, asked the Police for the contact details for Mrs Ross's family, but they did not provide any; and (2) Transpacific's Regional Manager wanted to contact Mrs Ross's family, but received legal advice that he should not do so, and so did not. 218 Accordingly, Transpacific admits that it has not done anything for the family of Mrs Ross since the fatal incident, but repeats its deep regret for her death and says that its remorse is otherwise demonstrated by its admission of the contraventions of the OHS Act at an early stage of these proceedings, and the steps it has taken to ensure those contraventions do not occur again.

[37]

Appropriate pecuniary penalty 220 Transpacific contends it is inappropriate to fix a penalty by reference to the quantum of a penalty imposed in another case. In particular, penalties and other cases involving death should not be regarded as fixing a "benchmark" against which other penalties are to be determined where a fatality has occurred: Post Logistics at [39]. 221 In NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285, Burchett and Kiefel JJ said, at 295: 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 facts and the 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'. 222 The quantum of any penalty to be imposed must necessarily be fixed by reference to the peculiar facts of that case: Post Logistics at [39]. 223 In this case, the pecuniary penalty should be fixed by reference to the following factors described above: (1) the objective seriousness of the offence; (2) the corporate culture of Transpacific; (3) the mitigating factors; (4) the remorse of Transpacific for the death of Mrs Ross and the injuries to Ms McMerrin to which the brake defects were a contributing factor; and (5) the steps which Transpacific has taken to prevent further contraventions of the OHS Act. 224 In those circumstances, notwithstanding that its first contravention was a contributing factor to a fatality, Transpacific contends the appropriate pecuniary penalty to be imposed on Transpacific should be assessed in the middle range of offending, rather than the upper range applicable to cases in the most serious category.

[38]

The Court's consideration 225 The detailed submissions made by the parties note that the parties accept that in the penalty setting process, this Court is not affected by the principles referred to by the High Court of Australia in Barbaro. However the parties also noted that, at the time of the hearing, the Full Court of this Court had reserved its decision on that question in QUD 257 of 2013. 226 That decision - Director, Fair Work Building Industry Inspector v Construction, Forestry, Mining and Energy Union at [2015] FCAFC 59 (Director v CFMEU) - was handed down on 1 May 2015, and the Court must now take account of what that Full Court has said concerning the application of Barbaro so far as the setting of penalties under legislation like the OHS Act is concerned. 227 While that decision was concerned with civil penalties to be imposed under the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act), as the parties have intimated, the decision of the Full Court should be considered relevant to the imposition of penalties under the OHS Act as well. In each case, the Parliament has provided for the imposition of pecuniary penalties for contraventions of regulatory regimes. 228 In Director v CFMEU, the Court concluded as follows. The concerns identified by the High Court in Barbaro concerning the sentencing process in the area of criminal law are relevant to the pecuniary penalty process under such regulatory regimes (see [239]). Thus, the impermissible expression of an opinion as to the amount of the penalty reflects a well-established limitation upon the ambit of a party's right to make submissions. Further the difficulty in understanding the method by which any such opinion is formed is as real in pecuniary penalty cases as it is in criminal sentencing, as there is a risk that such opinions may compromise the sentencing process and/or create the public perception of such compromise (see [239]). As to an agreed penalty, any admission of liability may be a relevant consideration in sentencing or imposing a pecuniary penalty. Willingness to submit to the imposition of a substantial penalty may also be relevant in that way. However, even if the offender nominates a substantial figure as the penalty to which it will submit, the Court must still fix the appropriate penalty, taking into account such contrition as well as all other relevant considerations. Any such agreement is no more than an expression of a shared opinion and therefore inadmissible. The amount of the agreed penalty may simply reflect the point at which each party considers that it is in its interests to agree. In other cases, the agreed amount offers no assistance in fixing the amount of the appropriate penalty (see [241]). However, the Court did not dismiss the concerns of regulators as to the importance of negotiations and agreements under the various statutes pursuant to which pecuniary penalties may be imposed, although it did not accept that the problem was as great as regulators may suggest. The adversarial system depends on the capacity of professional advocates to explain the most complicated of legal and factual situations by reference to the evidence and the law. The issues to be ventilated in pecuniary penalty cases may be complex, but they are not amongst the most complex which the Court regularly considers. The Court, therefore, expects that regulators and offenders will continue to seek to reach agreement as to factual matters and as to the application of the law (see [242]). In Barbaro, the High Court held that statements as to ultimate outcome or range were merely expressions of opinion and therefore could not properly be advanced in submissions, and there could be no justification in taking a different view in pecuniary penalty proceedings (see [242]). 229 In Director v CFMEU, the Court noted, at [244], that it was exercising original and not appellate jurisdiction, and so its subsequent focus was on the approach to be taken in the case before it. 230 While the Court said that it was not necessarily seeking to establish general rules as to the conduct of such proceedings, it proceeded, at [245]-[253], to lay out the approach it took in the case in question as follows. (1) The Court considered the status of the statement of agreed facts in that case. To the extent that it stated agreed facts, the Court accepted that it should be treated as providing the factual matrix upon which the Court's "instinctive synthesis" should be based, leading to the quantification of the relevant pecuniary penalties. Certain paragraphs of the statement of agreed facts were identified as providing the factual matrix and some other paragraphs were said to disclose facts only in the sense that they demonstrated: that each respondent consented to a declaration that is conduct in contravention of the BCII Act; that subject to the discretion of the Court, the respondents consented to the imposition of pecuniary penalties in the amounts specified, which were said to be "satisfactory, appropriate and within the permissible range in all the circumstances"; and that the penalties be paid to the Commonwealth. (2) The Court said, at [245], that a respondent's acceptance of liability and willingness to submit to the imposition of a substantial pecuniary penalty are relevant considerations in fixing such a penalty, but not as to the actual amount. It noted that Barbaro establishes that in criminal sentencing, the relevant considerations are statutory prescriptions as to sentence, the facts of the case, the relevant sentencing principles and comparable sentences. The Court said each of those matters has an analogue in the process of fixing a pecuniary penalty. (3) The Court noted, at [247], the extent to which the respondents had cooperated before the application to the Court was made and had conceded contravention of the Act and agreed to the proposed orders. However, the Court noted it knew nothing about the dealings between the Director and the respondents and did not know when the willingness to admit liability was communicated. Further, the Court knew very little about the conduct comprising the contraventions. (4) The Court then considered the factual circumstances to the extent they were revealed to it. (5) The Court noted, at [251], that the submissions made by the Director and the respondents demonstrated that submissions concerning agreed penalty or agreed penalty range were no more than expressions of opinion. The process by which the agreed penalties were formulated had not been explained. (6) The Court also referred to the use of prior decisions in fixing penalties, which it approved, saying, at [252], that the development of a consistent approach to the fixing of pecuniary penalties necessitates reference to prior decisions. (7) The Court also considered, at [253], the offender's history of compliance or non-compliance "in the domain to which the pecuniary penalty regime applies". 231 In Director v CFMEU, because of the views the Court expressed, it adjourned the matter to allow the parties to reconsider their respective positions. 232 The Court considers, in the circumstances, it should apply the approach to the setting of pecuniary penalties as indicated in Director v CFMEU. 233 In the case now before the Court, while facts are agreed, there is no agreement as to particular penalties that the parties say the Court should impose. Rather, as outlined in the parties' submissions, the parties agree that the issues to be determined by the Court in relation to penalty are: (1) the number and form of the declarations to be made in respect of the breaches of the s 16(1) and s 17 of the OHS Act; (2) whether one pecuniary penalty or more than one pecuniary penalty should be imposed on the respondent for its breaches of the OHS Act; and (3) the quantum of the pecuniary penalty or pecuniary penalties. 234 In these circumstances, the Court's responsibility to make its own instinctive synthesis of the facts of the case, and all the circumstances that should lead the Court to conclude that a particular penalty or penalties are appropriate, is not in any material sense compromised. The Court is able to proceed on the basis of the material received by the Court and the submissions made by the parties to date. The facts supporting the finding that contraventions have occurred, as alleged, are provided in appropriate detail. 235 Comcare submits that four declarations should be made, each with its own penalty outcome, reflecting the agreed facts and admitted contraventions of ss 16(1) and 17 of the OHS Act. 236 While the declarations it proposes should be made suggest that they are agreed, that is only so in a very formal sense given the parties dispute the inferences that may be drawn from the agreed facts, and so the basis upon which pecuniary penalties should be assessed. They leave the drawing of reasonable inferences to the Court. 237 The declarations will be dealt with in order.

[39]

Declaration 1 238 Comcare propose the following first declaration: 1. On 28 February 2011, the Respondent contravened subclause 2(1)(a) and subclause 2(1)(b) of Schedule 2, Part 1 of the Occupational Health and Safety Act 1991 (Cth) (Act), by breaching sections 16(1) and 17 of the Act (Contraventions). 2. The conduct that constituted the Contraventions was that the Respondent: (a) failed to take all reasonably practicable steps to protect the health and safety at work of its employee, Aaron Meotti (Meotti); and (b) failed to take all reasonably practicable steps to ensure that persons who were not the Respondent's employees, and who were near an Iveco Acco truck registration number 1DKX 647 (Truck), which was owned and operated by the Respondent in the course of its business, were not exposed to risk to their health or safety arising from the operation of the Truck. 3. In particular, the Respondent breached sections 16(1) and 17 of the Act by: (a) failing to take all reasonably practicable steps to provide and maintain a working environment, including plant, that was safe for Meotti, and posed no risk to his health and safety; (b) failing to take all reasonably practicable steps to ensure that the control arms on the automatic slack adjusters on the Truck's front brakes were securely fastened to fixed points; (c) failing to take all reasonably practicable steps to ensure that the front brakes of the Truck were properly adjusted, and their operation was not compromised, particularly in an emergency; (d) failing to take all reasonably practicable steps to ensure that all mechanics whom it employed to service and repair trucks in its fleet, were provided with and used a standard gauge to measure the thickness of the trucks' brake pads; (e) failing to provide a means for the systematic review and analysis of the recorded thicknesses of the brake pads of trucks in its fleet; (f) failing to take all reasonably practicable steps to properly supervise and oversee the servicing of trucks in its fleet by mechanics employed by the Respondent; and (g) failing to employ a formal system of monitoring the performance of those of the mechanics whom it employed, who had received warnings for poor work practices. 239 As set out above, by its submissions, Transpacific admits the particular matters set out in paragraphs 1, 2 and 3 of this proposed declaration. 240 However, it raises by its submissions certain issues of fact, outlined above at [152]-[164]. 241 Transpacific contends that findings should be made on the basis of the statement of agreed facts, set out at [165] above. 242 Counsel for Comcare reasonably submitted at the hearing that these various submissions and proposed admissions on behalf of Transpacific fall into four broad categories: first, alleged failures by Mr Meotti that would have avoided the fatal incident; secondly, questions of foreseeability of the circumstances that led to the fatal incident in any event; thirdly, the adequacy of the systems and servicing that were in place in respect of the truck; and fourthly, the submission that the brake defects were not in place at the time of the last service prior to the fatal incident. 243 As to the submissions of Transpacific concerning what Mr Meotti did or should have done, I reject those submissions. Not only are the submissions made with the benefit of hindsight, but they are quite unfair in all the circumstances. While counsel for Transpacific expressly stated that his client was not alleging that Mr Meotti was driving unsafely, acknowledging that no action was taken against him following a Police investigation, he did submit, on behalf of Transpacific, that without being overly critical of Mr Meotti, Mr Meotti was driving too closely to the car in front and then chose the wrong alternative when faced with the van in front of him. 244 In my opinion, the criticisms made of Mr Meotti are not supported by the evidence and no such inference should be drawn from the facts as agreed and placed before the Court. In particular, Mr Meotti, as the facts make plain, suddenly found himself faced with a stationary vehicle in front of him, an unidentified white sedan having veered from its path moments beforehand. The suggestion that Mr Meotti might have taken the truck to the left onto the gravel road is without any proper basis. As acknowledged by counsel for Transpacific, there were light poles in that area and to have deviated in that manner might have been an extremely dangerous thing to do. In all of the circumstances as they prevailed at the time, Mr Meotti reasonably applied the service brakes in the truck hard and held his line, colliding with the van, skidding and then, regrettably, colliding with the wagon, leading to the fatal incident and Mrs Ross' death. 245 To the extent, therefore, that Transpacific seeks to avoid or minimise or in some way alleviate its contraventions, that it otherwise admits, by reference to the conduct of its driver of its truck, I do not accept those submissions. 246 In relation to the submissions that the truck was relatively new and had been driven 17,555 km, and that those facts should have some bearing on the question of whether the brake defects should be considered foreseeable, I also reject those submissions. The question of the alleged "newness" of the truck goes nowhere. There may, possibly, have been something in such a submission if the truck had more or less been driven out of the new truck yard. But a truck that was six months old, was used day-in, day-out, and had already driven 17,555 km as a garbage and delivery truck for 1,106 engine hours, in my view, cannot relevantly be described as "new" for the purposes of drawing any of the sorts of foreseeability inferences that Transpacific would seek to draw. I do not accept those submissions. 247 It was appropriate at all times for the truck to be properly serviced in a manner that would ensure the brake pads were in proper order and, in the circumstances, would ensure that the control arms on the automatic slack adjusters on the front brakes were securely fastened to fixed points. 248 I accept the submission of Comcare that Transpacific was aware of slack adjusters on the truck because Mr Henderson, who serviced the truck on 21 February 2011, had a work order that included, in a checkbox, "slack adjusters". I accept the submission put that there is no need for the precise facts of an incident occurring to be contemplated if the fault of a particular nature and the potential incident that may flow from it is foreseeable. 249 I also accept the submission made on behalf of Comcare that it is entirely foreseeable that over time bolts come loose, screws come undone and nuts may work their way back up threading. Plainly, such matters, as a matter of foreseeability, should be checked because if they are not and such things have come loose, a serious traffic accident may well occur. As counsel for Comcare put it, this should be treated as a matter of common sense. If the bolts or the securer come undone or loose, and the effectiveness and efficiency of the brakes is thereby likely to be affected, an accident is foreseeable. 250 The fact of the matter is that, after the accident, the improvement notice issued by Comcare to Transpacific led to the discovery of the fault. It may be conjecture as to whether or not but for the notice it would ever have been identified, but the fact is Transpacific acted after it got that notice. 251 I also accept that it is a reasonable inference to draw from the facts that on three occasions after the accident, the service checklist failed to make mention of the slack adjusters specifically and there was a failure to identify any problem with the brakes. 252 I accept that there was a systematic servicing problem in this regard, as there were three separate mechanics on three separate occasions who failed to identify any faults. 253 I accept the submission made on behalf of Comcare that, in this regard, there was a less than adequate supervision system in place. While it is not necessary for each mechanic to be constantly supervised, the circumstances of this case suggest the system of supervision was inadequate. 254 As to Transpacific's submission that there is no evidence that Mr Henderson missed or overlooked brake defects, and the proposition, in effect, that the agreed facts do not support the view that the defects were not in place immediately prior to the fatal incident, I do not accept this submission. It is a reasonable inference to make, in light of the fact that a previous inspection had occurred only seven days prior to the incident and that only 684 km had been driven since that inspection, that the fault was discoverable at the last service. 255 Indeed, I accept the submission made on behalf of Comcare that a reasonable inference can be drawn that the nuts in question had been missing or loose for some time and that the failure of mechanics, after the fatal incident, to identify the problem on three separate occasions goes to support the drawing of this reasonable inference. Transpacific's submission that no such inference can be drawn is speculative. 256 The circumstances, therefore, are that the Court does not accept that a penalty should be imposed on the basis of the version of facts contended for by Transpacific. 257 Rather, the Court accepts the inferences and findings contended for by Comcare as set out above at [90]. 258 In those circumstances, the Court considers that the first declaration proposed by Comcare should be made in respect of the contraventions of 28 February 2011. The precise penalty to be imposed is considered below.

[40]

Proposed declarations 2, 3 and 4 259 Comcare seek three additional declarations, each in identical terms, but in respect of three separate and sequential periods, being: (1) between 2 April 2011 and 19 April 2011; (2) between 21 April 2011 and 8 May 2011; and (3) between 10 May 2011 and 13 May 2011. 260 In respect of each of those respective periods, the proposed declaration is that: 1. Between [the relevant period] the Respondent contravened subclause 2(1)(a) and subclause 2(1)(b) of Schedule 2, Part 1 of the Occupational Health and Safety Act 1991 (Cth) (Act), by breaching sections 16(1) and 17 of the Act (Contraventions). 2. The conduct that constituted the Contraventions was that the Respondent: (a) failed to take all reasonably practicable steps to protect the health and safety at work of its employees; and (b) failed to take all reasonably practicable steps to ensure that persons who were not the Respondent's employees, and who were near an Iveco Acco truck registration number 1DKX 647 (Truck), which was owned and operated by the Respondent in the course of its business, were not exposed to risk to their health or safety arising from the operation of the Truck. 3. In particular, the Respondent contravened sections 16(1) and 17 of the Act: (a) after the Truck had been involved in a fatal accident on 28 February 2011, by failing to properly inspect the Truck, identify that the control arms on the automatic slack adjusters on the front brakes of the Truck were not securely fastened to fixed points, and that, as a result, the front brakes of the Truck were not properly adjusted, and their operation was compromised (brake defects), and rectify the brake defects; (b) by failing to take all reasonably practicable steps to provide and maintain a working environment, including plant, that was safe for its employees, and posed no risk to their health and safety; (c) by failing to take all reasonably practicable steps to ensure that the front brakes of the Truck were properly adjusted, and their operation was not compromised, particularly in an emergency; (d) by failing to take all reasonably practicable steps to ensure that all mechanics whom it employed to service and repair trucks in its fleet were provided with and used a standard gauge to measure the thickness of the trucks' brake pads; (e) by failing to provide a means for the systematic review and analysis of the recorded thicknesses of the brake pads of trucks in its fleet; (f) [by] failing to take all reasonably practicable steps to properly supervise and oversee the servicing of trucks in its fleet by mechanics employed by the Respondent; and (g) by failing to employ a formal system of monitoring the performance of those of the mechanics whom it employed, who had received warnings for poor work practices. 261 In all of the circumstances, Transpacific does not challenge the making of these three additional declarations, accepting that three different mechanics in three different inspection periods caused the contraventions, but contend that there should either be only one penalty imposed in respect of the contravening conduct referred to in all four declarations, or at least only one additional penalty imposed in respect of the contraventions that are found to have occurred after the fatal incident and referred to in these three further declarations. 262 In these circumstances, I am satisfied that the three proposed declarations should be made, given the facts and the findings referred to above. 263 That leaves the question as to what penalty or penalties are appropriate: only one, as Transpacific contends, or four, as Comcare submits; or some other number.

[41]

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.

Comcare v Transpacific Industries Pty Ltd

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Judgment (42 paragraphs)

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Cases Cited (29)

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