SafeWork NSW v BOC Limited [2020] NSWDC 156

SafeWork NSW v BOC Limited [2020] NSWDC 156

The prosecution did not prove beyond reasonable doubt that BOC Limited failed to comply with its health and safety duty or that any such failure exposed the babies to the relevant risk. The Court accepted that BOC had performed risk assessment, that its testing forms constituted a safe work procedure or SWMS conforming with AS 2896, that the forms were available to Mr Turner, and that Mr Turner and Mr Heasman knew the work and testing requirements. The risk materialised because Mr Turner falsely signed or completed testing records and Mr Brightwell signed as having witnessed testing when he had not. That conduct was not mere inadvertence and was not reasonably foreseeable by BOC Limited,...

Jurisdiction
Australia
Judgment Date
30 April 2020
Procedural Posture
Criminal Prosecution for a Category 2 Offence Under S 32 of the Work Health and Safety Act 2011 (nsw) / Defended Hearing After Plea of Not Guilty; Final Orders Made on 01 June 2020
Outcome
Defendant found not guilty; Summons dismissed; prosecution ordered to pay the defendant's costs as agreed or assessed.
Legal Topics
['person Conducting a Business or Undertaking' 'health and Safety Duty Under S 19(2) of the Work Health and Safety Act 2011 (nsw)' 'reasonably Practicable Measures' 'medical Gas Pipeline Installation and Commissioning' 'cross Contamination of Medical Gases' 'safe Work Method Statement' 'foreseeability' 'falsification of Testing Records' 'causation and Exposure to Risk of Death or Serious Injury']
['criminal Law' 'work Health and Safety'] ['person Conducting a Business or Undertaking' 'health and Safety Duty Under S 19(2) of the Work Health and Safety Act 2011 (nsw)' 'reasonably Practicable Measures' 'medical Gas Pipeline Installation and Commissioning' 'cross Contamination of Medical Gases' 'safe Work Method Statement' 'foreseeability' 'falsification of Testing Records' 'causation and Exposure to Risk of Death or Serious Injury']

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Procedural Posture

Criminal Prosecution for a Category 2 Offence Under S 32 of the Work Health and Safety Act 2011 (nsw) / Defended Hearing After Plea of Not Guilty; Final Orders Made on 01 June 2020

Legal Issues

  1. 1 ['Whether BOC Limited was conducting a business or undertaking and owed a health and safety duty under s 19(2) of the Work Health and Safety Act 2011 (NSW).' 'Whether BOC Limited failed to comply with its health and safety duty by not taking the pleaded reasonably practicable measures concerning risk assessment, safe work procedures, training, testing, commissioning and witnessing of medical gas installation work.' 'Whether any failure by BOC Limited exposed baby Amelia Khan and baby John Ghanem to a risk of death or serious injury within s 32 of the Work Health and Safety Act 2011 (NSW).' 'Whether the conduct of Mr Turner and Mr Brightwell in signing or falsifying testing and witnessing documents was reasonably foreseeable and attributable to BOC Limited.']

Ratio Decidendi

The prosecution did not prove beyond reasonable doubt that BOC Limited failed to comply with its health and safety duty or that any such failure exposed the babies to the relevant risk. The Court accepted that BOC had performed risk assessment, that its testing forms constituted a safe work procedure or SWMS conforming with AS 2896, that the forms were available to Mr Turner, and that Mr Turner and Mr Heasman knew the work and testing requirements. The risk materialised because Mr Turner falsely signed or completed testing records and Mr Brightwell signed as having witnessed testing when he had not. That conduct was not mere inadvertence and was not reasonably foreseeable by BOC Limited,...

Court Disposition

Defendant found not guilty; Summons dismissed; prosecution ordered to pay the defendant's costs as agreed or assessed.

Orders

  • ['The prosecution has not proved all of the elements of the offence beyond reasonable doubt.' 'I find the defendant not guilty.' 'The Summons is dismissed.' "I order the prosecution to pay the defendant's costs as agreed or assessed." 'I return the exhibits.']