Australia: Comcare Prosecutes For Food Allergy Death

On 30 June 2009, the Federal Court of Australia handed down a fine of $210,100 in a Comcare prosecution of the Commonwealth of Australia, acting through the Chief of the Army for a contravention of the Occupational Health and Safety Act 1991 (Cth) (the OHS Act) by the Australian Army Cadets (AAC) in the course of conducting a three day training course known as Bivouac 2007 at the Wombat State Forest in Central Victoria in March 2007.1

The fine handed down is close to the maximum civil penalty available under the OHS Act, which is $242,000.

The Federal Court proceedings had two separate parts, one part which related to the supply of food to cadets containing peanuts despite being informed of allergies to peanuts and the second part which related to losing a number of cadets for a period of eighteen (18) hours.

Part 1 – Supply Of Food Containing Peanuts

In the course of the training exercise, the AAC supplied the cadets with one-man combat ration packs with beef satay food pouches containing peanuts despite being informed that seven (7) of the cadets were allergic to peanuts.

One of the cadets, 13 year old Nathan Francis, died from the effects of anaphylactic shock after taking a mouthful of food containing peanut. The food was supplied to Nathan Francis despite his parents having advised that Nathan had a severe peanut allergy.

The food was supplied by staff of Scotch College, then acting as officers of the Scotch College Cadet Unit.

Under section 16(1) of the Commonwealth OHS Act, an employer must take all reasonably practicable steps to protect the health and safety at work of the employer's employees. The OHS Act, by virtue of a Ministerial declaration, deems cadets undertaking cadet activities to be employees of the Commonwealth. The Scotch College Cadet Unit is a unit of the AAC and as such, rather than the College, it was the Chief of the Army, as the relevant employing authority for the AAC who owed the duty to Nathan Francis.

The AAC was provided with numerous forms informing them of Nathan's allergy. At the time of the Incident, the AAC's Policy Manual required the listing of medical conditions including allergies and for the list to be available when an emergency occurred. It did not require the information to be circulated in relation to the distribution of food to cadets. The medical information was not provided to the person who distributed the food to the Scotch College cadets.

Part 2 - The Lost Cadets

At the same Scotch College Cadet Unit camp, six (6) cadets were lost in the bush for eighteen (18) hours (the Lost Section Incident). The cadets started the navigation exercise at 10am and were due to return at 4pm. At midday, the Sergeant with supervision responsibilities for the section left them alone in the bush and did not return, taking the sole radio communication device. He was not replaced. From midday, the section was under the command of a year ten (10) student without radio communication equipment. The cadets managed to return to the campsite at 11am the following day.

A risk assessment had been completed for the navigation exercise and had required the section to retain communications equipment for the duration of the exercise.

Once again, the Lost Section Incident involved a failure of the Commonwealth to ensure the safety of the cadets and in particular, by failing to ensure that the lost cadets were in possession of a radio communication device previously issued and which had been identified in the risk assessment.

The Undertakings

This case is the first time the enforceable undertakings provisions of the OHS Act have been considered by a Court.

The OHS Act provides that one of the civil remedies available for a breach of section 16(1) of the OHS Act is giving written undertakings to Comcare pursuant to clause 16 of Schedule 2 of the OHS Act.

The case raises interesting points about the way the written undertakings provisions of the OHS Act operate in practice. The Federal Court was asked by the parties to adjourn the Lost Section Incident part of the proceeding pursuant to clause 16(3) of Schedule 2 of the OHS Act. This section of the OHS Act, however, does not stipulate whether the adjournment ordered is ever to come to an end. Both Comcare and the Commonwealth intended that proceedings would be struck out without a declaration being made in the event that the Commonwealth does not default on the terms of the undertaking.

However, Justice North of the Federal Court took the view that while it may be the general intent of the section, the result may not be available in the case as the undertaking provided by the Commonwealth effectively involved an admission of the contravention. Under clause 2(1)(a) of Schedule 2 of the OHS Act, the Court is obliged to make a declaration of a contravention if it considers that the person has breached the general duty in section 16(1) of the OHS Act.

Findings in relation to this issue have been postponed for the adjourned date for hearing, set down for 1 April 2010, and it will be interesting to see whether a declaration of contravention is made against the Commonwealth in relation to the Lost Section Incident.

While not discussed in Justice North's reasons for judgment, Schedule 2 of Comcare's Enforcement Policy (which deals with enforceable undertakings) states that "an enforceable undertaking need not admit liability". As a result of this decision, one would expect to see other Commonwealth employers in a similar position steering clear of making any admissions when negotiating enforceable undertakings with Comcare in future.

The breadth and detail of the terms of the undertaking provided by the Commonwealth to Comcare in this case demonstrate that Comcare will expect significant undertakings if they are to be accepted. In all, the Commonwealth entered into 50 specific undertakings arising from the Incidents. The specific undertakings included the following:

On Allergies

  • a new warning to appear on AAC activity joining instructions regarding the inability of the ADF to provide a severe food allergy free environment
  • a restriction on the use of combat ration packs already distributed to ADF personnel and a prohibition on the distribution of combat ration packs to members of the public and the AAC
  • the provision of compulsory pre-activity instructions and training for all Army Cadet Staff on food allergies, allergic reactions and medical treatment of allergies
  • an apology in writing to the family of Cadet Nathan Francis
  • payment for publicity of the undertaking in an advertisement in a daily metropolitan newspaper in each capital city of each State and Territory of Australia
  • the publication of a statement in internal ADF publications
  • the development and implementation of an Anaphylaxis Policy to be developed in conjunction with medical advisors

On The Lost Cadets

  • the production of a field activities handbook to assist in the planning and conduct of AAC field activities
  • the development of a standard operating procedure for mandatory reporting requirements for lost or overdue cadets
  • the implementation of a revised AAC OHS Risk Management Policy and procedures
  • the commencement of an AAC internal OHS audit program with results to be provided to Comcare on a quarterly basis regarding the progress and outcome of such audit procedures, and
  • a presentation on the Army's approach to planning and conduct of youth development related field activities at a public forum such as the Safety in Action conference in 2009 or 2010.

Lessons: Risk Management Is Key

This case serves as a reminder of how important it is to ensure that risk management processes are linked together in an overall risk management system. It is not enough to simply collect medical forms and consent forms and have those forms available when medical emergencies occur. Risk assessments in all facets of activities must:

  • be undertaken prior to commencing activities
  • be implemented in practice
  • be specific to the activities being undertaken, and
  • take into account the specific characteristics of the persons undertaking the activities.

Schools should particularly take note of the case and assess whether they have appropriate policies and procedures in place for managing the risks associated with allergies and extra-curricular activities.


1. Comcare v Commonwealth of Australia [2009] FCA 700.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions