Comcare v Commonwealth of Australia [2009] FCA 70 (Cadet Francis)
Issue
Under Section 16(1) of the Occupational Health and Safety Act 1991 (Cth) (the Act), an employer must take all reasonably practicable steps to protect the health and safety of its employees.
On 30 March 2007, Australian Army Cadet (AAC) Nathan Francis died as a result of a severe peanut allergy. He was participating in a Scotch College Army Cadet Unit bivouac in the Wombat State Forest, Victoria at the time. Cadet Francis suffered an anaphylactic reaction after being provided with a ration pack that included rations containing peanut protein, for lunch.
Investigation
Comcare conducted an investigation into the incident in collaboration with the Victorian Police, to assess the systems in place to manage the occupational health and safety of cadets while engaged in cadet activities. Based on the evidence obtained, the investigator concluded that the Commonwealth of Australia, acting through the Chief of Army, as the employing authority for AAC breached s 16(1) of the Act by failing to take all reasonably practicable steps to ensure that cadets with known food allergies were not exposed to risks to their health and safety when being provided with ration packs. In particular the Commonwealth breached its duty by:
- supplying Cadet Francis (and two other cadets with allergies) with a ration pack containing peanut protein; and
- permitting Cadet Francis to consume the ration pack once it was in his possession.
Outcome
On 6 June 2008, Comcare filed proceedings in the Federal Court of Australia (Victoria), seeking a Declaration of Contravention by the Chief of Army of s 16(1) of the Act in relation to the death of Cadet Francis. Comcare also sought the imposition of a pecuniary penalty in relation to the alleged contravention. The hearing of the proceedings took place between June 2008 and May 2009.
On 30 June 2009, Justice North declared that the Commonwealth of Australia, acting through the Chief of Army, as the employing authority of AAC had contravened s 16(1) of the Act. Justice North determined that the Chief of Army did not take the appropriate measures to prevent Cadet Francis (amongst others), from being exposed while on the bivouac to risks to his health and safety associated with his food allergy. Specifically the Chief of Army failed to make use of the information provided to it regarding the pre-existing allergies or conditions of its cadet members and consequently it failed to take due care when distributing ration packs to cadets. These failings resulted in the tragic death of Cadet Francis when he was provided with a ration pack containing peanut protein, despite having informed the CoA of his allergy.
The Commonwealth has been ordered to pay 1910 penalty units for the breach, which equates to a monetary sum of $210,100.
A copy of the decision is available at: http://www.austlii.edu.au/au/cases/cth/federal_ct/2009/700.html.
A video summary of the judgment is also available at http://www.fedcourt.gov.au/judgments/video_jdg.html (click on the link to Comcare v Commonwealth of Australia [2009] FCA 700).