On 7 August 2011 an airport fire appliance was travelling to assist the Northern Territory Fire and Rescue Services when it was involved in a fatal collision (see Airservices Australia to be prosecuted over fatal fire appliance accident in Darwin (January 14, 2015)).  At long last that prosecution has been resolved with Airservices Australia being fined $160 000 in the Federal Court of Australia (Kristy O’Brien ‘Fire truck operator ordered to pay $160k over 2011 Darwin crash that killed threeABC News (Online) 22 April 2016; and thank you Luke Dam for bringing this report to my attention).  (Interestingly the ABC Report says that the case was heard by Justice John Reeves, but if you go to the actual judgment, Comcare v Airservices Australia [2016] FCA 418, the judge is named as Justice White.  I’ll assume the transcript from the Court is correct.  References in [square brackets], below, are to numbered paragraphs in White J’s judgement).

In the Federal Court White J accepted that Airservices Australia breached its obligations both to its employees and to others ([1]-[2]) by:

a) failing to train, inform and instruct its employees appropriately in driving on public roads under emergency conditions; and

b) failing to conduct an appropriate risk assessment to identify and subsequently control hazards relating to the task of driving on public roads under emergency conditions.

It should be noted that Airservices Australia never denied its liability.  At [10] White J said:

Airservices admits its contraventions and acknowledges that Comcare is entitled to the relief which it seeks. It did this in the defence which it filed two weeks after the commencement of the proceedings and, therefore, at the earliest practical opportunity. Accordingly, this judgment concerns principally the penalty to be imposed on Airservices.

The Court made a declaration that the conduct of airservies Australia was a breach of the (then) OHS Act.  Such a declaration was required by the Act and had the effect of giving a public statement both to the defendant, and to others, that this conduct is a breach of the Act.  That sort of declaration is to give guidance to others as to what is, or is not, a breach.  The Court made the declaration but then had to consider whether a monetary penalty was also appropriate.  The maximum possible penalty was a fine of $242 000 ([19]-[21], [24]).  Because the defendant was a ‘body corporate’ ([7]-[8]) and not an individual, gaol was never an issue.   (The driver of the fire appliance had been charged with various traffic offences including proceeding through a red traffic light, dangerous driving and dangerous driving causing death but those charges were withdrawn by the Director of Public Prosecutions on 15 November 2012).

What is the point of imposing a fine?  White J (at [27]-[28]) referred to the decision of the High Court of Australia in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA.  In that case

… the plurality (French CJ, Kiefel, Bell, Nettle and Gordon JJ) made two observations concerning civil penalty regimes generally which are pertinent in the present context… The second is that the object of civil penalties is primarily to achieve deterrence. They seek to do so by putting a price on contraventions which is sufficiently high to deter repetition by the contravenor and by others who might be minded to contravene the particular regime in the same way: at [55]. Punishment and retribution are not the purpose of civil penalties …

This means that the penalty the Court imposes must be such as to deter Airservices from further contraventions of the OHS Act and serve as a signal to those in a similar position of the need to comply with their obligations under work, health and safety legislation.

In deciding the penalty the Judge had to weigh up how serious the contraventions by Airservices were, recalling that the contraventions were the failure to provide training, not the seriousness of the actual outcome.  At [51] White J said:

Airservices’ contraventions are objectively serious because it failed to recognise and act on what was plainly a reasonably foreseeable risk and one which, if realised, was capable of producing very grave consequences for its own employees and other road users

On the other hand there were a number of factors that operated in favour of Airservices Australia ([57]-[59]):

Airservices has expressed its sorrow and regret to the surviving victims and their families. It did so long ago and not just in the course of the submissions on penalty to this Court. It is evident that Airservices has conducted itself in relation to the surviving victims and their families with genuine compassion and sorrow. I note that a senior employee of Airservices made a public statement of apology and regret on its behalf at the Coroner’s inquest held in May 2013. It has repeated those statements in the submissions to this Court. I accept these statements as sincere. I note that Airservices has taken a number of steps to give effect to its contrition.

As noted earlier, Airservices admitted at the earlier opportunity the contraventions alleged by Comcare. This was consistent with its expressions of contrition and reflected a willingness to facilitate the course of justice in relation to its contraventions. This is a significant matter of mitigation and by itself warrants a significant reduction in the penalty which would otherwise be appropriate.

Since 7 August 2011, Airservices has addressed, conscientiously and diligently, the deficiencies in its training and risk assessments and has sought to identify any other shortcomings in its equipment and systems. In particular, it has undertaken itself, or has commissioned others to undertake, several investigations and reviews in respect of matters arising from the incident …

Airservices took other action as well. Shortly after 7 August 2011, it informed each State and Territory authority with which it had an MOU that it would not respond to any requests for assistance until it had addressed the issues arising from the incident of 7 August 2011 to its satisfaction. At the same time, Airservices issued an interim direction to all its employees requiring compliance with all road rules at all times, irrespective of whether they were driving on a public road under emergency conditions.

The Northern Territory Coroner conducted an inquest into the incident. Airservices cooperated responsibly and thoroughly with the inquest and has implemented many of the recommendations made by the Coroner in his report.

Airservices has acted in accordance with the recommendations in the reports and reviews it has commissioned… It has developed and implemented an enhanced driver training program involving both theoretical and practical elements which all drivers of its vehicles must undertake; and it has reviewed the configuration and profile of the Rosenbauer Mark 8 vehicles resulting in modifications to improve visibility and recognition, including by repainting all of its ARFFS vehicles a lime green colour.

Finally, I note that Airservices cooperated fully and frankly with all independent investigations concerning the incident on 7 August 2011. I respectfully agree with the following assessment made by the Northern Territory Coroner of Airservices’ response:

There is little doubt that Airservices Australia has responded to this tragedy in a thoughtful, thorough and determined way. The management of that organisation [has] been humble and willing to admit the mistakes that were made and the need for improvement. The gravity with which they view their task is reflected in the number of excellent and detailed reports commissioned on their behalf and then provided without hesitation to the inquest and interested parties.

Weighing everything in the balance, his honour imposed a fine of $160 000.

Comment

This was always a tragic case, and the law has to be applied, but I do wonder to what effect.  As noted by the High Court the point of the penalty is to deter future conduct.  Although I’m not a criminologist I think it can also be taken that deterrence or punishment is most effective if it is reasonably swift.  This fine has been imposed some 4 ½ years after the event. There is no doubt that Airservices Australia took on board the ‘lessons learned’ and have taken action to ensure it doesn’t happen again.  As the judge said (at [68]):

Airservices has responded to the incident of 7 August 2011 in a responsible and conscientious manner. It is not easy to identify what more it could have done by way of facing up to its responsibilities.

If there is not much more that it could have done, what further deterrence does a $160 000 fine provide?

Fining a ‘for profit’ company makes sense because that takes money, ultimately, from the shareholders.  They in turn want to maximise their return so are likely to influence the Board and senior executives on how they want the company to run.  When fining a commonwealth agency the money is taken from one part of the Commonwealth and given to another.   Further, being in the nature of a penalty, it will not come from insurance but from the agencies budget.   As the sister of one of the victims is reported to have said ‘… the money was not going to benefit the family and it was “shifting from one Commonwealth bucket to another”’; and she’s right.  (Compensation to victims is governed by the Motor Accidents Compensation Act (NT) and hopefully claims under that scheme have been resolved.  The difference with compensation schemes however is that they are covered by relevant insurance so the money to pay that compensation would not have come from the budget Airservices Australia had to maintain airport fire fighting and rescue services).

On the other hand, the rule of law is meant to apply equally and exempting the Commonwealth from fines imposed, in effect, by the Commonwealth would not send the right message.  This fine is intended to signal to everyone, government and private sector alike, that there are financial penalties that come with failing to adequately assess and address risks to employees and others.

Given that Airservices Australia has cooperated fully with each inquiry and admitted liability as soon as it was prosecuted, it does beg the question of why it took 4 ½ years to determine penalty.   Presumably some of that delay was occasioned by waiting for coronial processes and for Airservices Australia to complete its own reviews so it could make an informed decision on whether to defend the case or not.  But even so ‘justice delayed is justice denied’ and as evidenced by the response of Airservices Australia, the organisation today is not the same as it was.  It seems unlikely that this fine will make any difference to Airservices Australia’s efforts not to make the same mistake again.