Comcare v Commonwealth of Australia (2015)

Facts

On the night of 20 October 2009, a special forces soldier received a fatal gunshot wound to the head, while another was injured during a military training exercise conducted by the Australian Defence Force (ADF) at the Cultana Range Training Area in South Australia.

Comcare brought a proceeding against the Commonwealth of Australia for alleged breaches of the Occupational Health and Safety Act 1991 (Cth) (since repealed) in relation to the ADF’s conduct.

Judgment

The ADF was fined $220,000 (91% of the maximum penalty) for breaching the Act in failing to maintain a safe work environment and failing to provide workers with adequate supervision.

The Court heard that at the time of the incident, the ADF addressed known health and safety risks through:

• documented procedures, instructions and training, such as range instruction, which identified risks and controls arising from live gun fire; and
• a manual that described procedures for training exercises involving live gun fire.

However, the manual didn’t include procedures to ensure policies were being followed, and risk assessments weren’t conducted for each training exercise. The Court also heard that the ADF failed to ensure that those involved in the night training exercise were appropriately briefed and qualified to perform the relevant tasks.

The Court noted that although the ADF had “taken serious and considered steps over time to minimise the risk to its ADF soldiers… there were difficulties in the effectiveness of the protocols and processes documented in the manual, possibly the most serious shortcoming in the present case occurred in the execution of those protocols and processes”.

Lessons

This case highlights the need for you to take all practicable steps to ensure company policies are being followed and risk assessments are conducted for activities carried out in the workplace.

The cost of monitoring and enforcing safety policies far outweighs the potential costs in litigation and penalties for failing to abide by these policies. As Comcare CEO Jennifer Taylor stated, “This is particularly important for work that is inherently dangerous, as is the case with many tasks performed by defence personnel.”

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.