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District Court 8 May 2020

SafeWork NSW v Christopher Turner

[2020] NSWDC 180

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: SafeWork NSW v Christopher Turner [2020] NSWDC 180
Court: District Court of New South Wales
Date: 8 May 2020
Judge: Russell SC DCJ

Background

The defendant was a contractor working in the medical gas industry. He operated through a single-person company established at the direction of his principal, BOC Limited, and was engaged to install neonatal resuscitation panels supplying oxygen, medical air, and suction outlets across eight operating theatres at Bankstown Lidcombe Hospital in 2015.

Unknown to the defendant and others involved in the project, a mislabelling error dating back to a 1996 installation had transposed the oxygen and nitrous oxide labels on two branch pipelines associated with Operating Theatre 8. That error remained undiscovered for twenty years. When the defendant installed and tested the new neonatal oxygen port in that theatre, he failed to adequately test for cross-connection, failed to adequately inspect the oxygen concentration of the newly installed outlet, and failed to conduct testing in the presence of a hospital staff member experienced in administering medical gases to patients.

As a direct consequence of those failures, two newborn babies, referred to in the proceedings as Amelia Khan and John Ghanem, were administered nitrous oxide instead of oxygen during emergency resuscitation after birth. SafeWork NSW prosecuted the defendant under the Work Health and Safety Act 2011 (NSW).

  • Whether the defendant, as a worker under the Work Health and Safety Act 2011 (NSW), failed to take reasonable care under s 28(b) such that his acts or omissions exposed others to a risk of death or serious injury contrary to s 32
  • The objective seriousness of the offence and where it fell on the sentencing range
  • What weight to assign to mitigating factors, including the late plea of guilty and the defendant's willingness to give evidence in related proceedings
  • The appropriate quantum of the fine, having regard to the maximum penalty of $150,000
  • Whether an order for prosecution costs was appropriate, and in what form

Decision

The defendant pleaded guilty to the offence. The court accepted that his duty under s 28(b) required him to take reasonable care that his acts or omissions did not adversely affect the health and safety of other persons, and that this duty was proportionate to the control he could exercise over his work activities and environment. Because the offence carries strict liability under s 12A of the Act, the prosecution did not need to prove fault beyond the failure itself.

The court assessed the offence as falling in the high range of objective seriousness. The defendant worked in the medical gas industry, was specifically engaged to carry out this type of installation and testing, and the consequences of his failures were catastrophic: two newborns received nitrous oxide when oxygen was urgently required during resuscitation.

On mitigation, the court recognised the late guilty plea but still allowed a 15% reduction. An additional 5% reduction was granted for the defendant's willingness to assist by giving evidence in proceedings against other parties, including BOC, a hospital employee, and the hospital itself. The combined discount was 20%.

The court set an appropriate fine of $125,000, reflecting the high objective seriousness of the offence and the need for both general and specific deterrence. After applying the 20% discount, the fine was fixed at $100,000. The court also ordered the defendant to pay prosecution costs as agreed or assessed, noting that the lateness of the plea had contributed to the likely size of those costs.

Orders Made

  • The defendant Christopher Turner was convicted of the offence
  • A fine of $100,000 was imposed (reduced from $125,000 by 20% to reflect the guilty plea and cooperation)
  • Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine was ordered to be paid to SafeWork NSW as prosecutor
  • The defendant was ordered to pay the prosecutor's costs as agreed or assessed

Key Takeaways

  • Under s 28(b) of the Work Health and Safety Act 2011, a worker's duty to take reasonable care is calibrated to the control that worker can exercise over their work activities and environment, meaning specialists engaged for specific technical work carry a correspondingly higher duty in that area.
  • The District Court held that failing to test adequately for cross-connection, failing to verify oxygen concentration, and failing to conduct testing in the presence of appropriately experienced hospital staff each independently constituted a failure of reasonable care in the context of medical gas installation.
  • An offence attracting the maximum penalty of $150,000 will be assessed in the high range of objective seriousness where the work carried an obvious potential for catastrophic harm and the defendant had specialist expertise in the relevant field.
  • A guilty plea entered late in proceedings, following an original summons filed nearly two years earlier, attracts a more modest discount than an early plea; here the court allowed 15% for the plea and a further 5% for willingness to cooperate in related prosecutions.
  • Where multiple parties face related prosecutions arising from the same incident (here, BOC, a hospital employee, and the hospital itself were also prosecuted), a costs order against one defendant may need to account for the risk of double-counting shared investigation and litigation costs.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 4, 12A, 28, 32, 155, 230, Sch 2
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 23
- Fines Act 1996 (NSW), ss 3, 4, 6, 122
- Health Services Act 1997 (NSW), s 17

Cases
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- BW v R [2011] NSWCCA 176
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465