Citation: SafeWork NSW v BOC Limited [2020] NSWDC 156
Court: District Court of New South Wales
Date: 30 April 2020 (Final Orders: 1 June 2020)
Judge: Strathdee DCJ
Background
BOC Limited is a large corporation providing installation and maintenance of gas systems, including medical gas systems in hospitals. In 2015, BOC was engaged to install piped medical oxygen, medical air, and suction outlets into operating theatres at Bankstown Lidcombe Hospital. BOC sub-contracted the physical work to a sole-trader company, Pro-Med Services Pty Limited, and allocated its own employee and an apprentice to assist.
During the installation work, the workers connected a new oxygen outlet to a pipe that had been mislabelled as oxygen since the hospital's 1996 renovations. That pipe in fact carried nitrous oxide. Following the works, the sub-contractor and a hospital employee signed certification documents falsely recording that proper testing had been completed when it had not. The mislabelled connection went undetected.
As a result, two babies born at the hospital in 2016 were inadvertently exposed to nitrous oxide rather than oxygen during neonatal resuscitation procedures. SafeWork NSW prosecuted BOC under section 32 of the Work Health and Safety Act 2011 (NSW), alleging that BOC failed to ensure, so far as reasonably practicable, that persons were not put at risk of death or serious injury from work carried out as part of its business.
Legal Issues
- Whether BOC, as a person conducting a business or undertaking, failed to comply with its health and safety duty under section 19(2) of the Work Health and Safety Act 2011 (NSW)
- Whether the specific measures pleaded by the prosecution (including an adequate Safe Work Method Statement and appropriate worker training) were reasonably practicable in the circumstances
- Whether any failure by BOC caused, or put persons at, a risk of death or serious injury, given that the workers independently falsified safety certification records
- Whether the falsification of records by the sub-contractor and a hospital employee broke the chain of causation between any of BOC's alleged failures and the risk to the babies
Decision
The court found that the prosecution had not proved all elements of the offence beyond reasonable doubt, and entered a verdict of not guilty.
On the question of whether the pleaded measures were reasonably practicable, the court examined BOC's safety management system, its training requirements for the sub-contractor, and the Safe Work Method Statement in place. Strathdee DCJ was not satisfied that the prosecution had established, to the required standard, that these measures were inadequate in a manner that amounted to a breach of duty.
The court's most significant finding concerned the conduct of Mr Turner (Pro-Med's director and sole employee) and Mr Brightwell (a hospital employee). Both men signed certification documents falsely recording that required testing had been properly conducted when it had not. The court found this was a deliberate, conscious choice to lie, not mere inadvertence or inattention. That conclusion was central to the court's reasoning on causation.
Applying principles from Royall v The Queen, the court held that the deliberate dishonesty of the two workers could not be attributed to BOC. Even if the prosecution had established that BOC's safety measures were deficient, any such deficiency did not relevantly cause the risk to the babies, because the workers had chosen to falsify records regardless of what training or documentation they had been given. The court reasoned that there was no confidence that more detailed procedures would have been followed by individuals who had already demonstrated a willingness to lie about what work had been done.
Orders Made
- The defendant was found not guilty.
- The summons was dismissed.
- The prosecution was ordered to pay the defendant's costs, as agreed or assessed.
Key Takeaways
- A deliberate decision by workers to falsify safety certification records can sever the causal link between an employer's alleged system failures and the resulting risk to third parties, at least where the prosecution cannot show that better systems would have made a difference.
- The District Court applied causation principles from Royall v The Queen in the WHS prosecution context, treating the workers' conscious dishonesty as conduct not attributable to the defendant company.
- Under section 32 of the Work Health and Safety Act 2011 (NSW), the prosecution bears the onus of proving beyond reasonable doubt each element of the offence, including that any failure to comply with the duty actually put persons at risk.
- Where workers elect to lie about completing required safety checks, the court found it could not be assumed that additional training or more detailed safe work method statements would have produced compliance, undermining the prosecution's case on both breach and causation.
- A mislabelling error from prior construction work, combined with falsified post-installation certification, produced the harm in this case; the court's analysis turned on which party's conduct relevantly caused that outcome in light of the criminal standard of proof.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 8, 19(2), 32
- Criminal Appeal Act 1912 (NSW), s 5AE
Cases
- Royall v The Queen (1991) 172 CLR 378
- Baiada Poultry Pty Ltd v R [2012] HCA 14
- Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531
- Slivak v Lurgi (Aust) Pty Ltd [2001] HCA 6
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 191
- R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 331
- Nash v Resource Pacific Pty Ltd (No. 3) [2018] NSWSC 45
- Theiss Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252
- Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50
- SafeWork NSW v Grasso Consulting Engineers Pty Ltd; SafeWork NSW v Ignazio Grasso [2019] NSWDC 792
- Orr v Cobar Management Pty Ltd [2019] NSWDC 796
- Orr v Hunter Quarries Pty Ltd [2019] NSWDC 634
- Kirwin v Pilbara Infrastructure Pty Ltd [2012] WASC 99
- R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
- Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197
- Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267