Trooper Lawrence

Comcare v Commonwealth of Australia [2007] FCA 662

Issue

Section 16 of the Occupational Health and Safety Act 1991 (‘the Act’) requires, that an employer must take all reasonably practicable steps to protect the health and safety at work of its employees.

On 10 November 2004, a soldier and employee of the Australian Defence Force (‘ADF’)-Army, 25 year old Trooper Angus Lawrence, died from acute heat stress. This condition resulted from his participation in training activities conducted at the Mount Bundy Training Area in the Northern Territory, in temperatures exceeding 32 degrees Celsius.

Investigation

Comcare’s investigation of the incident, found that the Commonwealth of Australia, acting through the Chief of the Defence Force as the employing authority in relation to members of the ADF, had breached s 16(1) of the Act by:

· failing to conduct the training activities in a training area outside of the Northern Territory during the wet season (despite previous recommendations made by senior ADF staff against conducting such courses during the wet season);

· failing to promulgate policies and procedures contained in the Defence Safety Manual (‘SAFETYMAN’), and to provide adequate training in relation to that manual;

· failing to provide a structured system of acclimatisation prior to the field phase of the training activities;

· failing to effectively monitor heat conditions and suspend the field phase of the training activities in accordance with the policies and procedures contained in SAFETYMAN; and

· failing to provide rest/work cycles, and rest periods in shaded areas, as required by SAFETYMAN.

Outcome

On 12 November 2005, Comcare made application in the Federal Court of Australia, ACT, for a Declaration of Contravention against the ADF for the breach of s 16(1) of the Act. The hearing before Justice Madgwick commenced on 29 August 2006, during which time the ADF admitted to the breach of the Act.

On 4 May 2007, Justice Madgwick declared that the Commonwealth of Australia, acting through the Chief of the Defence Force had contravened s 16(1) of the Act by reason of the failures outlined above. His Honour ordered that the Commonwealth pay a penalty of 1800 penalty units in relation to this contravention, being a monetary sum of $198 000.