SafeWork NSW v BOC Limited

[2020] NSWDC 156

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	SafeWork NSW v BOC Limited [2020] NSWDC 156
Hearing dates:	13, 17, 20, 21, 25, 26, 27, 28 February 2020and 06, 14 April 2020
Date of orders:	30 April 2020
Decision date:	30 April 2020
Jurisdiction:	Criminal
Before:	Strathdee, DCJ
Decision:	1.   The prosecution has not proved all of the elements of the offence beyond reasonable doubt. 2. I will not enter final orders until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW). 3.   I will list the matter on 01 June 2020 to determine the appropriate course.  ADDENDUM Final Orders Made on 01 June 2020 1.   The prosecution has not proved all of the elements of the offence beyond reasonable doubt. 2.   I find the defendant not guilty. 3.   The Summons is dismissed. 4.   I order the prosecution to pay the defendant’s costs as agreed or assessed. 5.   I return the exhibits.
Catchwords:	CRIME – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury to other persons WORK HEALTH AND SAFETY – whether pleaded measures reasonably practicable – safety management system – objective knowledge of defendant – mere inadvertence or inattention – unforeseeable behaviour of a disobedient worker – falsification of records – reasonably foreseeable OTHER – commissioning of works – cross-contamination of medical gases – babies exposed to nitrous oxide inadvertently
Legislation Cited:	Criminal Appeal Act 1912 (NSW) Occupational Health and Safety Act 2000 (NSW) Work Health and Safety Act 2011 (NSW)
Cases Cited:	Baiada Poultry Pty Ltd v R [2012] HCA 14 Bulga Underground Operations v Nash [2016] NSWCCA 37 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 Hamersley Iron Pty Ltd v Robertson (unreported WASC 2 October 1998) Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531 Kirwin v Pilbara Infrastructure Pty Ltd [2012] WASC 99 Nash v Resource Pacific Pty Ltd (No. 3) [2018] NSWSC 45 Orr v Cobar Management Pty Ltd [2019] NSWDC 796 Orr v Hunter Quarries Pty Ltd [2019] NSWDC 634 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181 R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 331 Royall v The Queen (1991) 172 CLR 378 SafeWork NSW v Grasso Consulting Engineers Pty Ltd; SafeWork NSW v Ignazio Grasso [2019] NSWDC 792 Slivak v Lurgi (Aust) Pty Ltd [2001] HCA 6 Theiss Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Ltd [1998] NSWIRComm 200
Texts Cited:	Australian Standard 2896 ‘Medical Gas Systems – Installation and testing of non-flammable medical gas pipeline systems’ (2011)
Category:	Principal judgment
Parties:	SafeWork New South Wales (Prosecutor) BOC Limited (Defendants)
Representation:	Counsel: Mr J Agius SC and Mr D Jordan appeared for the Prosecutor Mr B Hodgkinson SC and Mr Y Shariff appeared for the Defendant   Solicitors: Department of Legal Services (Prosecutor) Mary Azzi, Ashurst Lawyers (Defendant)
File Number(s):	2018/00218042
Publication restriction:	None

Judgment

INTRODUCTION

1. BOC Limited (‘the defendant’) pleaded not guilty to a charge that being a person conducting a business or undertaking who had a health and safety duty under s 19(2) of the Work Health and Safety Act 2011(‘the Act’) to ensure so far as is reasonably practicable that the health and safety of other persons is not put at risk from work carried out as part of the business or undertaking, did fail to comply with that duty and the failure to comply with that duty put at risk other persons, specifically baby Amelia Khan born 20 June 2016 and baby John Ghanem born 13 July 2016, to a risk of death or serious injury contrary to s 32 of the Act.

THE AGREED STATEMENT OF FACTS

2. The prosecutor tendered an Agreed Statement of Facts (Exhibit A) and an Agreed Tender Bundle (Exhibit B) which forms the basis of the background set out below.

BACKGROUND

3. The defendant is a registered corporation (ACN 000 029 729) which operates in the installation and maintenance of gas systems including medical, scientific and industrial gases. The defendant has operated since 18 January 1935 and carried out business under the name BOC Limited since 31 May 2002. As at April 2015 the defendant employed 1,792 employees.

4. In 2015, Mr Christopher Heasman (‘Mr Heasman’) was employed by the defendant as a Customer Engineering Services (‘CES’) technician. Mr Heasman’s day-to-day duties included the maintenance and installation of the defendant’s customer gas systems including in medical, hospitality, scientific and industrial systems. Mr Heasman continues to be employed in this capacity.

5. In 2015, Mr Paul Brightwell (‘Mr Brightwell’) was an employee of NSW Health, working with the SWSLHD and posted to BLH. In the period of 1 January 2015 to 1 August 2016, Mr Brightwell held the position of Assistant Engineer at BLH. His duties included overseeing the running of the Engineering Department of BLH and dealing with any issues that arose with project works.

6. Pro-Med Services Pty Limited (‘Pro-Med’) is a registered corporation which operates in the service and repair of medical equipment at hospitals. In 2015, Mr Christopher Turner (‘Mr Turner’) was the sole director and sole employee of Pro-Med. In 2015, BOC had a service agreement in place with Pro-Med.

7. The defendant required Mr Turner to complete online training modules in relation to medical gases.

THE HOSPITAL

8. Bankstown Lidcombe Hospital (‘BLH’) is a public hospital that operates as a part of the South Western Sydney Local Health District (‘SWSLHD’).

9. At all material times, BLH was the defendant’s workplace and was a workplace for the purposes of s 8 of the Act.

10. BLH has operated from Elridge Road, Bankstown (‘the premises’) since approximately 1996. In 1996, the premises had been the subject of major renovations which included the installation of medical gas piping (‘the 1996 renovations’).

11. As at 2015, the premises included a maternity unit comprising ten neonatal cribs in a special care nursery with six birthing suites, which were supported by the hospital’s eight operating theatres.

12. Approximately 2,220 babies are delivered at BLH each year.

13. BLH uses the eight operating theatres for all its surgical purposes, including as necessary for both planned and emergency caesarean section deliveries. Each of these operating theatres needs to be capable of undertaking neonatal resuscitation. Such resuscitation can require ongoing and uninterrupted supply of oxygen to a newborn baby.

14. Specialised neonatal resuscitation machines, known as ‘Resuscitaire units’, are transported to the operating theatres for use for warming newborn babies and/or clinical emergencies involving neonates. Prior to July 2015, the Resuscitaire units were supplied with medical gases from bottles mounted on the units. When in use, the mounted oxygen cylinders only lasted for approximately 15 minutes before they became empty.

15. In or about 2014, BLH sought to have piped medical oxygen, medical air, and suction installed into wall panels in the operating theatres to service the Resuscitaire units and in order to prevent the need to change oxygen bottles during neonatal resuscitation.

THE 1996 RENOVATIONS

16. As part of the 1996 renovations that took place at BLH (then known as Bankstown Hospital), Medical Gas Systems Pty Limited trading as Hoslab (‘Hoslab’) had managed the installation work of a piped medical gas system at the hospital.

17. In the process of the installation of the piped gas system, or at any time thereafter and prior to July 2015, a pipe containing and carrying medical nitrous oxide gas was mislabelled as medical oxygen.

THE WORK

18. On 12 April 2015, Mr Brightwell emailed the defendant requesting a quotation for the installation of piped medical oxygen, medical air, and suction into wall panels into each of the eight operating theatres at BLH (‘the work’).

19. On 17 April 2015, the defendant provided a quotation (Q18673) that detailed two price options for the work. One option was for a total cost of $18,306.00. The second was for a total cost of $22,356.00. Both options described the work as follows:

1. Tee into existing suction, medical air and oxygen supplies in ceiling space of exit bay of theatre.

2. Run supplies to a cavity within each theatre.

3. Fit new three gang stainless steel flush mount panels.

4. Fit new oxygen, medical air and suction outlets.

5. Test and commission.

6. Repeat for all theatres.

20. The two pricing options differed only in the location of the cavity to which supplies would run.

21. Mr Brightwell did not seek a quotation from any other service provider.

22. The defendant was awarded the work at the agreed cost of $18,306.00.

23. The defendant sub-contracted Pro-Med to undertake the work.

24. Mr Heasman was allocated to do the work by the defendant. Mr Bailey Simpson (‘Mr Simpson’), an apprentice gasfitter hosted to BOC, was allocated by the defendant to assist both Mr Heasman and Mr Turner.

25. The work was scheduled by Mr Brightwell and the Nurse Manager Perioperative Services at BLH, Ms Eleanor Halvey, to take place over two nights; the night of 14 to 15 July 2015 and the night of 15 to 16 July 2015, and to be completed on the morning of 16 July 2015.

26. BLH required the installation work to be done during times when the operating theatres were not being used for scheduled operations; typically after 8:00pm. BLH required the overnight work to be completed by 7:00am the following day so the theatres could be cleaned and readied for surgical use at around 8:00am.

27. The work was to be split over two nights so that on each night, some of the operating theatres could be sterile, operative and available for emergency or unscheduled operations.

28. Immediately prior to the commencement of the work on 14 July 2015, Mr Turner, Mr Heasman and Mr Simpson were taken on a walkthrough of the operating theatres by Mr Brightwell and other staff from the hospital. At this time, discussions took place between Mr Turner, Mr Brightwell, Mr Heasman and Mr Simpson in relation to how the work was to be done and how to minimise the risks from the work. Some of the risks discussed were:

1. Which theatres would be worked on first to keep the furthest away from the emergency operating theatres to minimise the risk of patient infection;

2. Hot works, and minimising the risk of fire or alarm activation, including the requirement to do post-work monitoring;

3. Working at a height; and

4. Contamination.

29. Mr Heasman also noted that it was impractical for more than one person to work in the same roof space over the operating theatres at the same time.

30. On 14 July 2015, Mr Turner and Mr Heasman started the work. Mr Simpson worked between the theatres as required and directed by Mr Turner and Mr Heasman. Mr Simpson was jointly supervised by Mr Turner and Mr Heasman in the course of the work.

31. Mr Simpson’s work was limited to cutting through the gyprock in the walls of the operating theatres to create space for the new panels to be mounted, fetching tools for Mr Heasman and Mr Turner from the work van, assisting Mr Turner and Mr Heasman when required and assisting in cleaning up. Mr Simpson did not enter the roof space of any operating theatre, or in particular operating theatre 8 (‘OT8’), to perform any installation work.

32. On the night of 14 to 15 July 2015, the pipe work installation and connection work for OT8 was completed.

33. An oxygen pipe label was affixed to one of the new pieces of pipework leading into the panel and an oxygen outlet was affixed to that pipe.

34. Mr Turner and Mr Brightwell signed a BOC Medical Gas Outlet Test Form (Exhibit E), a Test Certificate Form T1, a Test Certificate Form T2, a Test Certificate Form T5, a Test Certificate Form T6, and a Contract Completion Certificate T9 (Exhibit D) all dated 15 July 2015 which recorded the test results for each of the oxygen, air and suction outlets in each of operating theatres 1 to 8.

THE INCIDENTS

35. OT8 was operational after receipt of the certification that the work had been properly completed and tested on 16 July 2015.

36. On 20 June 2016, baby Amelia Khan required resuscitation following delivery. She was administered medical nitrous oxide from the neonatal resuscitation medical gas system in OT8, thought at the time by those administering gas to her to be medical oxygen from the port labelled ‘oxygen’.

37. Amelia Khan sustained serious injuries including hypoxic ischaemic encephalopathy (brain damage due to lack of oxygen), symptomatic epilepsy and vision impairment.

38. At 11:54am on 13 July 2016, baby John Ghanem was born in OT8 and required resuscitation following delivery. During his attempted resuscitation, John Ghanem was ventilated with medical nitrous oxide from the neonatal resuscitation medical gas system in OT8, thought at the time by those administering gas to him to be medical oxygen from the port labelled ‘oxygen’. John Ghanem died at 12:51pm on 13 July 2016.

39. John Ghanem’s death, and the serious injuries sustained by Amelia Khan, occurred after having been administered medical nitrous oxide instead of medical oxygen from the medical gas system.

40. Use of OT8 was suspended by BLH on 21 July 2016.

41. On 21 July 2016, testing by Hoslab recorded that in OT8, the outlet labelled ‘oxygen’ on the neonatal resuscitation panel was delivering 0% oxygen and was, in fact, delivering nitrous oxide gas.

42. The particulars of the alleged failures contained in the Summons are as follows:

‘13.   The defendant failed to ensure so far as is reasonably practicable the health and safety of other persons, in particular the babies, in that it failed to take one or more of the following reasonably practicable measures to eliminate (or alternatively minimise if not reasonably practicable to eliminate) the risks to health and safety to other persons:

(a)   Conducting (or arranging for a suitably qualified person to conduct) a risk assessment prior to undertaking the work which identified the hazards and risks associated with the work. In particular, a risk assessment would have:

(i)   Identified the risks associated with undertaking the work, including the risk of cross connection of the pipes;

(ii)   Assessed the identified risks;

(iii)   Identified the most appropriate work methods for undertaking the work; and

(iv)   Identified the most appropriate control measures for undertaking the work;

(b)   Developing and implementing a Safe Work Method Statement (‘SWMS’) or having a safe work procedure for the work which complied with Australian Standard AS 2896-2011 Medical Gas Systems – installation and testing of non-flammable medical gas pipeline systems (‘the Standard’) and which required:

(i)   Connection of the port to the existing pipework to be undertaken in only one gas system at a time to minimise the risk of cross-connection; and/or

(ii)   Testing by a designated person to determine that the concentration of oxygen was correct and that there was no contamination; and/or

(iii)   The testing referred to in subparagraph (ii) above to be conducted:

•   In the presence of a member of BLH experienced in the administration of medical gases to patients; or

•   By the anaesthetist in charge or a delegated anaesthetist;

(c)   Ensuring that any contractors engaged by BOC to conduct the work are provided with the SWMS or safe work procedure set out in (b) above or ensuring that the contractor has its own SWMS or safe work procedure which complies with the Standard in the manner set out at (b) above;

(d)   Providing instruction, information and training to workers, in particular Mr Heasman and Mr Turner in the SWMS or safe work procedure;

(e)   Instructing workers, in particular Mr Heasman and Mr Turner, that testing should be undertaken at the completion of the work and, in particular, that the testing should:

(i)   Determine the identity of the gas being emitted from the new ports was correct by performing a cross-connection test;

(ii)   Determine the concentration of oxygen being emitted from the new ports was correct and that there was no contamination; and

(iii)   Be conducted in the presence of a member of BLH experienced in the administration of medical gases, or

(iv)   Be conducted by the anaesthetist in charge or a delegated anaesthetist.

(f)   Instructing workers, in particular Mr Heasman and Mr Turner, that the testing referred to in (e) above should not be undertaken in the absence of a member of BLH experienced in the administration of medical gases or an anaesthetist;

(g)   Requesting BLH to provide one of its members experienced in the administration of medical gases to patients is to be present and to witness the testing and certification of the port referred to in paragraph (e)(ii) above;

(h)   In the alternative to (f) above, requesting BLH to provide the anaesthetist in charge or a delegated anaesthetist to perform the testing referred to in paragraph (b)(iii) above.’

THE ELEMENTS OF THE OFFENCE

43. The prosecution bears the onus of proving beyond reasonable doubt the elements of the offence.

44. Section 32 of the Act provides:

‘A person commits a Category 2 offence if:

(a)   the person has a health and safety duty, and

(b)    the person fails to comply with that duty, and

(c)   the failure exposes an individual to a risk of death or serious injury or illness.’

45. The elements of the offence are:

Element 1    The defendant was conducting a business or undertaking;

Element 2   The defendant owed a health and safety duty to not put at risk, so far as was reasonably practicable, the health and safety of the babies under s 19(2) of the Act;

Element 3   The defendant failed to comply with that duty; and

Element 4   The failure put the babies at a risk of death or serious injury.

THE RELEVANT LAW

46. The offence is one of strict liability: s 12A of the Act.

47. A person is a “worker” if the person carries out work in any capacity for a person conducting a business or undertaking, including work as an employee, a contractor or a sub-contractor or an employee of a contractor or subcontractor: s 7 of the Act.

48. The duty provided for by the Act is not transferrable: s 14 of the Act. More than one person can concurrently have the same duty and each duty holder must comply with that duty to the standard required: s 16 of the Act.

49. If more than one person has a duty in relation to the same matter under the Act, each duty holder must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other duty holders in relation to the same matter: s 46 of the Act.

50. A duty holder must have a structured and systematic approach to risk management: Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 at [32] per Marks J.

51. It is not disputed that the defendant was a PCBU pursuant to s 5 of the WHS Act. As such the defendant had a duty to ‘ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking’: s19(2) of the Act.

52. The PCBU must, so far as is reasonably practicable, consult with the workers who are to carry out work for the business or who are likely to be affected by a health or safety matter: s 47 of the Act. Consultation includes sharing relevant information with the workers, giving them a reasonable opportunity to express their views and to contribute to the decision making process, taking into account the workers’ views and advising them of the outcome of the consultation process in a timely manner: s 48 of the Act. Consultation is required, inter alia, when identifying hazards and assessing risks to health and safety from the work and making decisions about ways to eliminate or minimise those risks: s 49 of the Act.

46. The defendant does not dispute, in factual terms, that it contracted with the area health service to perform the work, that during the work the new oxygen outlet in OT8 was connected to the nitrous oxide line in error, that the certification and commissioning process of the installation was not correctly performed, and that if that process had been correctly performed the error would have been detected prior to its use.

47. The defendant disputes that it failed to comply with its health and safety duty, and that the failure(s) put persons, and in particular the babies, to a risk of death and serious injury.

48. The content of the duty is contained within s 19 of the Act, as follows:

‘Primary Duty of Care

19 (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

(a)   workers engaged, or caused to be engaged by the person, and

(b)   workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:

(a)   the provision and maintenance of a work environment without risks to health and safety; and

(b)   the provision and maintenance of safe plant and structures, and

(c)   the provision and maintenance of safe systems of work, and

(d)   the safe use, handling, and storage of plant, structures and substances, and

(e)   the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and

(f)   the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as a part of the conduct of the business or undertaking, and

(g)   that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.’

56. The principles applicable to prosecution of offences under the Act have been summarised in recent decisions including Orr v Cobar Management Pty Ltd [2019] NSWDC 796; Orr v Hunter Quarries Pty Ltd [2019] NSWDC 634 and SafeWork NSW v Grasso Consulting Engineers Pty Ltd; SafeWork NSW v Ignazio Grasso [2019] NSWDC 792.

57. It is incumbent upon the prosecution to prove that the act or omission of the defendant was a significant or substantial cause of a person being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [130] per Bathurst CJ, Hidden and Davies JJ. The question, however, is one to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.

58. The requirement to ‘ensure’ means to guarantee or make certain: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470.

59. The safety of a worker or person cannot be ensured if a risk to their health and safety exists. The simple existence of the risk constitutes a breach of s 19 of the Act. It matters not that there was an accident or that a person was injured: Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531 at [13] per French CJ, Gummow, Hayne, Crenna, Kiefel and Bell JJ. The relevant risk for the commission of the s 32 offence is the risk of death or serious injury.

60. The relevant question is not whether the particularised failures of the defendant were the cause of the death or injury, but rather whether there was a causal relationship between the act or omission and the risk to which a worker was exposed: Bulga Underground Operations (supra).

61. The word ‘risk’ is not defined in the Act. Risk means the mere possibility of danger and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and Theiss Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252 at [67] per Spigelman CJ.

62. Reasonably practicable is defined in s 18 of the Act. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd [2001] HCA 6 at [37] per Gleeson CJ, Gummow and Hayne JJ.

63. The phrase ‘exposed to risks’ contained in s 8(2) Occupational Health and Safety Act 2000 (NSW) was interpreted to mean that a person was sufficiently proximate to the source of a risk for the risk to come home, irrespective of the mechanism by which that could happen: Theiss (supra).

64. The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak (supra). Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68].

65. In Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 at [32] per Marks J it was held that a duty holder must have a structured and systematic approach to risk management.

66. The words “reasonably practicable” indicate that the duty does not require an employer to take every possible step that could be taken: Baiada Poultry Pty Ltd v R [2012] HCA 14. Simply demonstrating that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has broken the duty: Baiada (supra) at [15] and [38] per French CJ, Gummow, Hayne, Heydon and Crennan JJ.

67. In WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257, Bauer J stated as follows:

“The very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry.”

68. The question of reasonably practical is also a question of fact, dependant on the circumstances of each case. The fact that an employee has carried out work carelessly or omitted to take a precaution does not preclude the employer from establishing that everything that was reasonably practicable in the employer’s undertaking to ensure that persons were not exposed to risks to their health and safety had been done: R v Nelson Group Services (Maintenance) Ltd [1998] 4 ER 331 at 351.

69. It is accepted law that one of the matters that PCBUs must recognise and plan for is the inevitability of human error ranging from inadvertence, inattention or haste through to foolish disregard of personal safety and deliberate non-compliance with safe systems of work: R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181 at [49] and Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 at [51].

70. In Kirwin v Pilbara Infrastructure Pty Ltd [2012] WASC 99 and Nash v Resource Pacific Pty Ltd (No. 3) [2018] NSWSC 45 at [423]-[429], it was held that the use of an independent contractor with specialist skills or knowledge is a relevant consideration. If reliance is placed on an independent specialist contractor to perform a task that would demonstrably be within the independent contractor’s area of expertise, it would not ordinarily be practicable for the contractor to do more, provided the task undertaken reasonably appeared to have been carefully and safely performed by the independent contractor: Hamersley Iron Pty Ltd v Robertson (unreported WASC 2 October 1998) per Steytler J.

71. A duty holder must have regard to not only the ideal worker, but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 per Dixon CJ. Whilst it is not always possible to foresee various inadvertent actions by workers, duty holders nonetheless must conduct operations on the basis that such acts will occur and they must be guarded against: WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 at [129].

72. In WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (supra) it was held that the unforeseeable behaviour of a disobedient worker may well lead to the happening of an event that could not be reasonably foreseen and therefore was not reasonably practical to guard against.

73. The relevant question on causation is whether the act or omission of the defendant was a significant or substantial cause of the exposure to the risk of injury: Bulga Underground Operations v Nash (supra) at [127]. Further, the relevant question is not whether the particularised failures of the defendant were the cause of the injury to the worker, but whether there was a causal relationship between the act or omission and the risk to which the worker was exposed: Bulga (supra) at [130].

74. The application of common sense must be featured in the determination of the question of causation, bearing in mind that the purpose of the enquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378.

75. Section 275 of the Act provides that an approved code of practice is admissible in proceedings for an offence against the Act as evidence of whether a duty under the Act has been complied with. The Court may have regard to the code as evidence of what was known about a risk, or the measures available to control a risk, and they may rely on the code to determine what is reasonably practicable in the circumstances to which the code relates.

GUIDANCE MATERIAL – AUSTRALIAN STANDARD AS2896

76. The Australian Standard applicable to the work is AS2896 ‘Medical Gas Systems – Installation and testing of non-flammable medical gas pipeline systems’ (‘The Standard’). The Standard has been revised and updated several times in the past 30 years with the latest release in 2011.

77. The Standard sets out the requirements for the safety aspects, construction, testing and certification as well as operation and maintenance of non-flammable medical gas pipelines used for patient care.

78. Clause 4.13.1 of the Standard requires that connections to existing systems shall be undertaken on only one gas system at a time to minimise the risk of cross-connection.

79. Clause 4.13.2 of the Standard requires that where an addition is made to an existing system, the new pipeline shall have an air-break during construction, with the existing system.

80. Clause 5.1 of the Standard requires that the testing and commissioning of medical gas systems must be carried out and must include a check for cross-connection in the pipeline. Clause 5.2 of the Standard requires that with cross-connection testing a member of the health care facility shall be present to verify the testing.

81. Clause 5.6.5.1 provides that tests for gas concentration shall be carried out as specified in Clause 5.6.5.2. Clause 5.6.5.2 states that each terminal unit on each system shall be checked to verify the nominal concentration of the gas. The specified concentration for oxygen and nitrous oxide are ≥95% and <5% respectively.

82. Clause 5.6.5.1 also provides that whenever a new medical gas piping system is installed or a major addition is installed from an existing system, a test for gas contamination shall be carried out. The work at BLH was a major addition from an existing system.

83. Clause 5.7 provides for operational testing. Clause 5.7.1 specifies that a ‘member of the healthcare facility experienced in administration of medical gases to patients, and such other persons as are required by the administration of the health care facility, shall be present and witness the test.’ Clause 5.7.1 further provides that where ‘non-respirable medical gases, e.g. nitrous oxide’ are piped, tests ‘shall be performed by the anaesthetist in charge or a delegated anaesthetist’, and that certificates ‘shall be dated and signed by all who have witnessed the tests’.

84. The following witnesses were called by the prosecution, and all apart from Mr Clifton gave oral evidence before me in Court. Mr Clifton gave his evidence by telephone over two days.

ALEXANDRA ROWE

85. Alexandra Rowe (‘Ms Rowe’) was called, and gave evidence that she was a Safety Inspector with SafeWork NSW. Ms Rowe attended at BLH on 1 August 2016 and 18 August 2016 to take a number of photographs of OT8 and the outlet of the pipe labelled ‘oxygen’ through which nitrous oxide was led (Transcript p19-20). These photographs comprise part of the agreed tender bundle (Exhibit A).

ELEANOR HALVEY

86. Eleanor Halvey (‘Ms Halvey’) was called and gave evidence that she was the nurse manager of perioperative services at BLH, a position which she held as at July 2015. Ms Halvey attested to the order of works on the evenings of 14 to 15 July 2015 and 15 to 16 July 2015, with reference to an email sent by her to staff at Bankstown Hospital on 14 July 2015 setting out which operating theatres were scheduled to be worked on each night (Exhibit C, Transcript p24). She stated that it was usual hospital procedure for work on operating theatres to be performed at night, outside of the regular theatre operating hours (Transcript p32). Ms Halvey gave evidence that on the night of 14 to 15 July 2015, the operating theatres that were to be worked on – in order – were theatres 6, then 8, then 7, then 5 (Transcript p24). Ms Halvey also gave evidence that the order in which the work was to be done was discussed with BOC representatives prior to 14 July 2015, though she was not able to say whether those representatives were Mr Heasman, Mr Bailey or Mr Turner or any other worker onsite during the evening work (Transcript p25). Ms Halvey was not present in the evenings when any of the work was done, though was notified by the Nursing Unit Manager and Mr Brightwell on 15 July 2015 that the work had been completed and she was aware that operating theatres 5, 6, 7, and 8 were available to be, and were, used on that day (Transcript p26-27). Ms Halvey gave evidence that Mr Brightwell was the designated person from within BLH who was responsible for organising the initial quotation for the work from BOC and to get the work done if it was approved (Transcript p32-33). Ms Halvey said that Mr Brightwell was involved from the commencement of consideration of the project through to its delivery and was responsible for meeting with the BOC staff on the night of the work (Transcript p33, 34).

BAILEY SIMPSON

87. Mr Simpson was called and gave evidence that as at July 2015, he was a first-year apprentice gasfitter with BOC. Mr Simpson gave evidence that he was only interviewed by police in October 2016, approximately one year and three months after the work was completed, and as such his memory of the work carried out from 14 to 16 July 2015 was not particularly strong (Transcript p42-43). Mr Simpson said that during the work at BLH, the only tasks he performed were cutting holes in the operating theatre walls for the metal panels to be fitted, fetching tools, and other general tasks as instructed by Mr Heasman and Mr Turner (Transcript p42). He said that at no time did he enter or work in the ceiling space (Transcript p42). Mr Simpson gave evidence that Mr Heasman and Mr Turner worked on separate theatres and he worked on cutting the wall in the theatre in which Mr Heasman was working first (Transcript p49, 50).

88. Mr Simpson gave evidence that, to the best of his recollection, he did not see the document entitled ‘Customer Service Report’ (Exhibit B, p27), though he said that it was usual practice for him to have seen, read and signed a customer service report on a job (Transcript p46).

CHRISTOPHER HEASMAN

89. Mr Heasman was called and gave evidence that as at 2015, he was employed as a technician with BOC and had been employed with BOC for approximately 10 years. Mr Heasman is a trade qualified boilermaker. Mr Heasman gave evidence that he was contacted by the police to provide a statement on 7 October 2016 and had no reason to cast his mind back to the works on 14 to 16 July 2015 prior to that date (Transcript p57). Mr Heasman said that he was not made aware, to the best of his recollection, that OT8 was the theatre in which the incidents occurred prior to making his statement to police (Transcript p57).

90. Mr Heasman gave evidence that as at July 2015, he was genuinely aware of the Australian Standards that applied to the work that he did (Transcript p56). He said that he was confident that he knew the nature of the work and had the training and experience to complete the work (Transcript p141).

91. Mr Heasman had not worked with Mr Turner prior to this job (Transcript p59). He was advised by his manager that Mr Turner was given a job and he was asked if he could ‘give him a hand to put some plug work in as he [Mr Turner] was in between jobs’ and was told ‘that we were going to give him a hand to install some gas lines in the operating theatres at Bankstown Hospital’ (Transcript p58-59).

92. On the evening of 14 July 2015, Mr Heasman said that he met up at BLH with Mr Turner, Mr Simpson, Mr Brightwell and the nursing unit manager he identified as ‘Eleanor’ (Transcript p61).

93. Mr Heasman gave evidence that whilst there was a discussion between he and Mr Turner about the work, there was no discussion as to who was ‘in charge’ of the work, and Mr Turner and Mr Heasman did not instruct the other how to do the work. Mr Heasman was told from the start by Greg Allen, his line manager, that the job was given to Mr Turner (Transcript p64, 140-141). Mr Heasman gave evidence that at no time during the work did Mr Turner ask him how to perform any aspect of the work, nor what the requirements of the work were (Transcript p141).

94. Mr Heasman gave evidence that at no time prior to or during the work did he see or sign the document entitled ‘Customer Service Report’ (Exhibit B, p27), and was at no time inducted into the document. Mr Heasman, when asked specifically, said that he should have been inducted into the form (Transcript p99). Mr Heasman said that he never saw a SWMS, safe work form, nor risk assessment for the work done at BLH in July 2015 (Transcript p99). Mr Heasman gave evidence that there were no discussions prior to or during the work at BLH in July 2015 about the risk of harm to people being resuscitated if any errors had been made in the work nor a document that set out the Australian Standard as it related to the work (Transcript p100).

95. Mr Heasman said he did not recall being requested to carry out the work in a specific order (Transcript p63). He gave evidence that Mr Turner commenced work on the pipework of OT8 whilst he and Mr Simpson worked inside the theatre, Mr Heasman demonstrating to Mr Simpson how to cut the walls on the operating theatre for the area in which the panels were to be inserted (Transcript p65, 66-67). After he had worked with Mr Simpson on the wall in OT8, Mr Heasman said that he moved to operating theatre 7 to begin working on the pipework (Transcript p65). Mr Heasman gave evidence that once he had finished working on operating theatre 7, he moved to operating theatre 5 and worked on the pipework there. Mr Heasman said that after working on OT8, Mr Turner worked on operating theatre 6 (Transcript p65). Mr Heasman could not recall the order in which he worked on the operating theatres for the second shift (Transcript p65).

89. When specifically asked, Mr Heasman said that it was not possible that Mr Turner in fact started on operating theatres 7 or 6 and not on operating theatre 8 (Transcript p65). Mr Heasman, when asked specifically whether the work was done in accordance with Ms Halvey’s schedule (Exhibit C), said that he did not recall being told that order and specifically remembered ‘starting at one end, theatre 8, and we worked our way down’ (Transcript p66).

Mr Heasman’s Work Procedure

97. Mr Heasman stated that the procedure he followed when he worked on the operating theatres at BLH was:

• He turned off the gases to be worked on at the valve box, though only those that were connected to the theatre to be worked on;

• He bled down the gas line he would be working on;

• He went into the ceiling, working from a ladder, and cut the new pipeline in for that gas; and

• Repeated as necessary for the other pipes (Transcript p73, 133-134).

98. Mr Heasman gave evidence that if the valve at the valve box, be it oxygen, medical air, or nitrous oxide, in any of the operating theatres worked on at BLH was turned off, the gauge above each valve handle that measured the downstream pressure of the valve would not drop to zero (Transcript p72-73). The valve would continue to show the pressure of what was left in the pipe downstream of the valve (Transcript p73). The pipes were not able to be ‘bled’ (the gas removed from the pipe) from the valve outlet at the wall of the operating theatres, they were bled elsewhere (Transcript p73).

99. Mr Heasman gave evidence that while he never asked Mr Simpson to turn off any valves for him, he may have asked Mr Simpson to depressurise a line for him to save Mr Heasman from having to come down from the ladder (Transcript p148-149).

100. Mr Heasman gave evidence that the process for cutting through a gas pipe involves using a circular tool that cuts around the outside of the pipe, known as a pipe cutter, as opposed to straight through the pipe (Transcript p110, 123, note Exhibit 2). Mr Heasman said should a worker cut into the incorrect pipe, which would initially be a small cut when using a pipe cutter, the worker would hear and feel the release of gas (Transcript p110). Mr Heasman gave evidence that, in his experience, he has never cut into a pipe that was pressurised to 415 kPa and not heard gas escaping (Transcript p125).

101. Mr Heasman maintained that whilst he would turn all the valves off for all of the gases he would be working on, he would not bleed all of the gases down at the same time, only the gas he was working on (Transcript p73, 82). Mr Heasman gave evidence that he did not believe that only shutting down (at the valve) the gas that was being worked on (say, oxygen) was safer than shutting down all of the gases that were proposed to be worked on (say, oxygen, medical air and suction) (Transcript p103). Mr Heasman gave evidence that even if all of the pipes proposed to be worked on were shut down at the valve at the same time, gas pressure would still remain in the pipes. When the gas that was being worked on (say, oxygen) was bled down at the valve, in the event that you cut into the incorrect pipe (say, medical air), the remaining gas pressure in the pipe would leak out, indicating to the worker that they have cut into the medical air pipe instead of the oxygen pipe (Transcript p104). Mr Heasman said that he did not understand the Australian Standard to require that only the line that the worker was intending to cut into to be shut down at the valve (Transcript p104).

102. Mr Heasman said in following the above procedure, if he had been working on the oxygen line, and cut into a pipe in the ceiling that was mistakenly labelled oxygen when it was in fact nitrous oxide, he would have noticed gas leaking from the pipe (Transcript p135). Mr Heasman confirmed that if he had utilised his procedure and there had been a cross-connection, it would have been obvious to him straight away (Transcript p136).

103. Mr Heasman also gave evidence that the function of bleeding down a line that had been previously turned off at the valve was to depressurise the remaining amount of gas in the area between the valve and the operating theatre (Transcript p136). He said that by turning off at the valve only those gases that were to be worked on (say, oxygen, medical air and suction), if he subsequently went to bleed one line (say, oxygen) that had been mislabelled and in fact contained nitrous oxide, the gas would continue to flow from the source and would not empty (Transcript p137).

104. Mr Heasman gave evidence that after he had turned the gases off at their valves and when he was bleeding the pressure down on the oxygen line, an alarm would go off, which he would then mute (Transcript p142). In the event that he was bleeding down a gas that hadn’t been turned off at the valve, no alarm would sound as the pressure would be maintained in the pipe as it would feed from the source, rather than bleed and empty (Transcript p143). If he did not hear an alarm when he bled down the gas, he would be alerted to the fact that there might be a problem (Transcript p144).

105. Mr Heasman conceded in re-examination that, in circumstances where a nitrous oxide pipe was inadvertently labelled oxygen, if someone had turned off the nitrous oxide valve as well as the oxygen, medical air and suction valves and then bled down all of the pipes and cut into the pipe labelled oxygen (though containing nitrous oxide), there would be no indication that the wrong gas pipe was being cut into.

106. After the new pipework was put in place, Mr Heasman said that he then turned each gas line on individually at the valve to ensure that the gas was being led from the correct line to the correct outlet (Transcript p84). Mr Heasman said that after he turned one line of gas on (for instance, oxygen) he checked the other outlets (for instance, suction and medical air) to ensure that no gas was being incorrectly led to those outlets from the oxygen line (Transcript p84-85). Mr Heasman then left the first gas line on (for instance, oxygen), and then turned on the valve for the second gas line (for instance, medical air) and checked the outlet pressure to ensure gas was being led to the medical air outlet (Transcript p85), and repeated this process for the last gas line (for instance, suction). Mr Heasman said any cross-connection would be evident to him at this stage (Transcript p138). Mr Heasman gave evidence that at this stage, he would not conduct a gas identity test, because he would expect that this test would be done in pre-commissioning and then again in commissioning (Transcript p86).

107. During cross-examination, Mr Heasman gave evidence that when he had completed work on one theatre, he taped over the newly installed outlets to indicate that they could not be used. Whilst he said it was usual practice for him to put a tag on the outlets with the message ‘do not use’ or ‘out of service’, he could not clearly recollect placing such a tag on the outlets on this occasion (Transcript p139). Mr Heasman conceded in re-examination that he never told the police or anybody from SafeWork NSW who was investigating this matter that he had put tape over any of the newly created nozzles in any of the operating theatres after the work was completed (Transcript p151).

108. Mr Heasman said that he did not notify anyone at the hospital that the operating theatres that had been subject to the work could not be used until the formal commissioning process took place (Transcript p150).

Commissioning and Pre-commissioning

109. Mr Heasman gave evidence that pre-commissioning was typically conducted at the end of the work, but before final commissioning, to satisfy the worker that the new piping was correct before they would engage the hospital for final commissioning (Transcript p86). Mr Heasman said that this was a procedure he learnt whilst working at BOC (Transcript p87).

110. Mr Heasman gave evidence that he did not conduct any pre-commissioning or commissioning for the BLH work (Transcript p87). Mr Heasman said that Mr Turner advised him that he ‘was coming back to do the commissioning’ and he observed that Mr Turner had a commissioning kit with him (Transcript p87). Mr Heasman rejected the proposition that he asked Mr Turner to return to do the commissioning (Transcript p87). Mr Heasman gave evidence that any time up until the point that he left he did not see Mr Turner doing anything that he would expect to see being done if pre-commissioning or commissioning were taking place, nor did he see a copy of any commissioning forms from Mr Turner (Transcript p90).

111. When shown the medical gas test forms completed by Mr Turner (Exhibits D and E), Mr Heasman said that with the exception of the figures for pressure drop recorded for operating theatre 5, none of the test results for operating theatres 1, 2, 3, 4, 6, 7, or 8 were out of the ordinary or questionable (Transcript p98).

112. Mr Heasman gave evidence that in the event that a nitrous oxide pipe was mistakenly cut into and led down to an oxygen outlet, the tests in the testing certificates (Exhibits D and E) that would indicate that nitrous oxide was coming out of the oxygen were the cross connection test (T1 part 2) and the gas purity test (T1 part 12) (Transcript p130). Mr Heasman gave evidence that if either of those two tests had failed, either in pre-commissioning or commissioning, he would not be able to hand the installation work over to the hospital for it to be used (Transcript p131).

Mr Heasman’s Training and Experience

113. Mr Heasman gave evidence that whilst working with BOC and prior to the work at BLH in July 2015, he had received training in relation to the installation requirements for medical gas pipelines, vacuums and scavenging systems including training in the requirements mandated by the Australian Standard (Transcript p126). This training was provided through an online system known as ‘Traccess’, which requires the users to complete units by reading learning materials and then passing a test (Transcript p127). Mr Heasman said that the second aspect of the training provided by BOC is peer-to-peer on the job training provided by more experienced employees to younger or more inexperienced employees (Transcript p127).

114. Mr Heasman gave evidence that due to his training prior to the work in July 2015 at BLH he was aware that:

• it was important to avoid cross-connection between the gas pipes as the gases were to be administered to patients;

• none of the gas outlets involved in installation could be used by the hospital before the work was commissioned;

• it was necessary to check the gas purity of the newly installed oxygen lines; and

• the testing that was recorded in the commissioning forms had to be witnessed by somebody from the hospital (Transcript p128-129).

PAUL BRIGHTWELL

115. Mr Brightwell was called who gave evidence that, as at July 2015, he held the position of assistant engineer at BLH. He had held this role since approximately 2013 (Transcript p171). In this role, he supervised all of the employees who worked in the engineering department (Transcript p171). Mr Brightwell is a trade qualified fitter and machinist (Transcript p168). As at July 2015, Mr Brightwell did not hold any professional engineering qualifications (Transcript p169). Mr Brightwell, as at July 2015, had no experience in the administration of gases to patients nor had he been involved in the testing of a medical gas delivery system in a hospital context (Transcript p170).

Mr Brightwell’s Role and Responsibilities

116. Mr Brightwell gave evidence that it was his responsibility to manage physical works to the hospital by seeking quotations, hiring appropriate contractors, ensuring that they were able to access the hospital and do the works whilst managing the conditions and requirements of the hospital, and then finally receiving the handover of the work at completion (Transcript p188-189). The requirement for handover occurred for all contractors for all kinds of work (Transcript p190). Mr Brightwell gave evidence that handover involved ensuring that the work that was to be performed had in fact been performed and the area on which works had been performed was in a workable, serviceable state when it was handed to the hospital, and it was his responsibility, if these standards weren’t met, to reject the handover and have the contractor fix it (Transcript p190).

117. Mr Brightwell gave evidence that it was his responsibility as the head of engineering to make sure that the requirements of the hospital in relation to the operation of the oxygen system were being met throughout the hospital (Transcript p192). Mr Brightwell gave evidence that he had engaged contractors from BOC to carry out maintenance work on the gas reticulation system at BLH since 2013 and he believed that there was an area contract with BOC for the Southwest Health Area. He gave evidence that he was the designated person to contact at Bankstown Hospital in relation to this system (Transcript p193).

118. Mr Brightwell said that part of his responsibilities included ensuring that the gas reticulation system at BLH was serviced and maintained as required by the Australian Standard (Transcript p193).

119. Mr Brightwell gave evidence that he would undertake the following procedure when servicing or maintenance of the system had to take place:

• He would make contact with BOC, or they would make contact with him as the designated person for them to contact;

• He would find out the scope of work that was to be performed on that particular visit, how long the visit would be, how long the work time would be, and which area of the hospital the work was to be carried out;

• He would liaise with the hospital personnel in that area and ascertain when and how the work could be carried out;

• He would make arrangements with the hospital staff and the contractors; and

• When the work was finished he would be responsible for checking that it had been done in accordance with the requirements, including the requirements of the standard, and ensuring the handover process took place so that the hospital could then use the system (Transcript p193-194).

The Work

120. Mr Brightwell gave evidence that on the evening of 14 July 2015, he met with ‘Chris Turner and another Chris and an apprentice’ at BLH, who he introduced to the theatre manager, Eleanor (Transcript p174). Mr Brightwell gave evidence that he could not recall whether there was any discussion about which theatres were to be worked on nor what order in which the jobs were to be done (Transcript p174-175). Mr Brightwell could not recall which night it was that OT8 was to be worked on, though he said that he considered the order specified in Eleanor Halvey’s email (Exhibit C, Transcript p24) was the correct order (Transcript p176).

121. Mr Brightwell said that during the course of the initial meeting, he instructed that all cut-ins of the pipework had to be after the valve box so that if the gases needed to be turned off in the theatre, all gases would be able to be turned off from the valve box (Transcript p178).

122. Mr Brightwell said that there was no form of induction to the worksite for the workers apart from showing the workers around the hospital and the location of security, the theatres and the change rooms (Transcript p178).

123. Mr Brightwell recalled that none of the workers were present on the morning after the first shift (15 July 2015) and at this stage, no handover of the facilities had occurred so the wall panels were not yet able to be used (Transcript p179, 200). Mr Brightwell was present when Mr Turner, Mr Heasman and Mr Simpson returned to work on the second shift.

124. On the morning after the second shift (16 July 2015) at about 7:00am, he met with Mr Turner who was still present (Transcript p179). Mr Brightwell gave evidence that he and Mr Turner had a conversation and Mr Turner asked Mr Brightwell to sign the testing certificates (Exhibits D and E) (Transcript p179).

125. To the best of his recollection, Mr Brightwell said the conversation went as follows:

‘These need to be signed?’

I asked, ‘Don’t we have to go up and test?’

His response was ‘The testing had already been completed’ (Transcript p179).

126. Mr Brightwell said that the forms had already been filled out by Mr Turner and signed. Mr Brightwell also said that Mr Turner told him that ‘the other Chris had witnessed the testing’. Mr Brightwell said that he had no reason to doubt what Mr Turner had told him and subsequent to this conversation, he signed the paperwork (Transcript p179, 235). Mr Brightwell said that he was authorised in this circumstance to acknowledge the completion of the work (Transcript p225).

127. However, Mr Brightwell later conceded that when Mr Turner said that the tests had been done, Mr Brightwell didn’t actually understand which tests had been done but took Mr Turner’s word that the testing had been done (Transcript p216).

128. Mr Brightwell said that when signing the forms, he was not aware that the date on the forms was incorrect (Transcript p181). Mr Brightwell said that aside from signing the documents, he didn’t read them (Transcript page 181). When asked why he signed the documents, Mr Brightwell said ‘I was asked to sign them and they had a little Post-It note that said, ‘Sign here’ (Transcript p181).

129. Mr Brightwell said that when signing the document entitled ‘Medical Gas Outlet Test Form’ (Exhibit E), under the words ‘witnessed by’, he believed he was witnessing that the work had been completed (Transcript p181). He confirmed that he was not present during the course of any testing of the system that had been installed (Transcript p181).

130. Mr Brightwell gave evidence that when presented the testing forms by Mr Turner (Exhibits D and E), he understood that they were the forms for the work that he understood had been performed, though did not look at the heading of any of the forms that he was signing and did not see the references to the clause of the Australian Standard (Transcript p209-211).

131. He did not read any of the figures, including the figures for oxygen purity (Transcript p226).

132. He did not see the words ‘These test procedures have been carried out in accordance with the requirements of Australian Standard AS2896. All zone isolation valves function as specified’ on T1, or the words ‘These test procedures have been carried out in accordance with the requirements of Australian Standard AS2896. All medical gas cross-connection tests are satisfactory’ on T2 (Transcript p210-211).

133. Mr Brightwell said that whilst he knew that cross-connection and gas purity tests had to be done, he did not check whether they had been done by looking at the form (Transcript p215):

‘Q.   So you say, do you, that even though you knew that cross-connection tests had to be done and gas purity tests had to be done, you didn’t actually check whether they had been done by looking at the form to see that you were signing that they had been?

A.   No.

Q.   When you were signing the form, how were you satisfying yourself that those tests had been done?

A.   Because I took the word of Mr Chris Turner.

Q.   Do you say Mr Turner told you which tests had been done?

A.   No. That all the testing had been done.

Q.   How did you know that included cross-connection testing?

A.   I didn’t know.

Q.   It was important though; you knew that.

A   I took the word of Mr Turner that all the testing had been done.’

134. Mr Brightwell conceded that if he didn’t know what testing had been done, either from his own knowledge, because Mr Turner had advised him, or from reading it on the testing forms, he could not, in accordance with the hospital system, accept the handover of the panels, and that the panels should have been rejected until he did understand what testing had been done or had witnessed the actual testing (Transcript p216-217).

‘Q   Did you understand it to include any particular testing?

A   The testing that needed to be done.

186. Test Certificate – Form 15. This is the handover instruction which makes reference to the Standard. Mr Brightwell signed that handover document as having witnessed that Test for Gas Purity. The document refers to the Standard and provides the methodology as to how the tests are to be conducted. This document is of great significance as the facility cannot be utilised by the hospital until the handover is complete. In so signing, it is incumbent upon Mr Brightwell to check and witness that all of the works have been done properly. Ms Larkin (Transcript p239 and 240) indicates that the direct responsibility for ensuring that the system for piping medical gases, including oxygen, was serviced, maintained and kept up to standard was held by Mr Brightwell.

187. Her evidence (Transcript p240) was:

'Q   If Mr Brightwell had not signed the handover documents, then the facility, the newly installed panels, would not have been able to be used by hospital staff?

A   Correct

Q    It was only the fact that he, in conjunction with Mr Turner, signed the relevant documents that allowed hospital staff access to and use of those facilities?

A   Correct.'

193. It was therefore his responsibility to ensure that the area in which the works had been done underwent the appropriate commissioning and handover, before the theatres could be utilised again.

194. It is inconceivable to me that both Mr Turner and Mr Brightwell did not understand the necessity to do the testing, and the potential consequences if the testing was not done, or was not done adequately. Whilst there is no evidence before me that Mr Turner did not do the required testing, or that he did not do it competently, on all the evidence I accept that nonetheless he falsified the testing documents.

195. There is a dispute in the evidence as to the circumstances under which Mr Brightwell signed the documents as having witnessed the testing. His evidence before me was that Mr Turner told him the testing had been done, and did not ask him to witness the testing but simply to sign the forms as he, Mr Turner, had actually done the testing.

196. Mr Turner’s s 155 Notice contains an answer that when he has asked Mr Brightwell to come and witness the testing, Mr Brightwell replied as follows:

‘I’ll take your word for it’.

197. I am of the view that Mr Turner has entered a guilty plea to a charge brought by SafeWork NSW with regard to these incidents.

198. I believe that Mr Turner had completed the paper work without performing the testing and thus falsified the records. I also believe that whatever was said or not said to Mr Brightwell about witnessing the testing, he signed the testing forms as having in fact witnessed the testing, but he clearly did not and has conceded such before me in court. Necessarily then, he was also complicit in signing documents that did not reflect that he had not witnessed any of the testing. The combination of the falsification of the documents by Mr Turner and Mr Brightwell had the most disastrous and tragic consequences.

(f)   Instructing workers, in particular Mr Heasman and Mr Turner, that the testing referred to in (e) above should not be undertaken in the absence of a member of BLH experienced in the administration of medical gases or an anaesthetist.

(g)   Requesting BLH to provide one of its members experienced in the administration of medical gases to patients is to be present and to witness the testing and certification of the port referred to in paragraph (e)(ii) above.

(h)   In the alternative to (f) above, requesting BLH to provide the anaesthetist in charge or a delegated anaesthetist to perform the testing referred to in paragraph (b)(iii) above.

199. With regard to particulars (f) (g) and (h) above I note that the requirement is for a person competent in medical gas testing and verification of piping systems to witness the final testing before the works can be ‘commissioned’ and returned to the hospital.

200. The prosecution submits that Mr Brightwell was not competent in medical gas testing and verification of piping systems as at 16 July 2015 as he had never been involved in the administration of medical gases to patients, was not trained in testing a medical gas system in a hospital, as he was a trade qualified fitter and machinist, and held no engineering or medical qualifications (Transcript p169-170).

201. Mr Turner’s understanding seems to have been that Mr Brightwell was the hospital engineer when he spoke to him on 13 or 14 July 2015 (Exhibit O Answer 59).

202. The prosecutor on this point makes the following submissions:

1.   Mr Brightwell did not have engineering qualifications and could not be described as being “an engineer”(as required by the Standard) in spite of his then job title.

2.   Mr Clifton stated that “it’s duly accepted in the industry, the hospital engineer would have an understanding of the gas system in the hospital” (Transcript p260). This, they submit, is not the test in the Standard, which required that the hospital representative not just have an “understanding” of the gas system in the hospital but be “competent in medical gas testing and verification of piping systems”.

3.   In any event, the prosecution submits, if there was an industry standard practice of accepting someone like Mr Brightwell as being a proper person to witness the testing of a newly installed medical gas system, such practice was clearly not in compliance with the Standard which requires that the person be experienced in the administration of medical gases. Mr Brightwell was not so experienced.

203. The difficulty that arises is that Mr Brightwell knew that he had to witness the testing, and Mr Turner understood that as the hospital engineer, Mr Brightwell was the appropriate (and nominated) person to witness the testing.

204. The prosecution submitted that Mr Turner should have enquired of Mr Brightwell whether he had the correct qualification to witness the testing, and upon ascertaining that he did not, Mr Turner should have asked BLH for someone appropriately experienced or qualified to be present.

205. The difficulty that I have with that submission is that BLH had given Mr Brightwell the job description of head of BLH’s engineering department, despite the fact that he was employed as an assistant engineer, and in fact held no engineering qualifications what so ever.

206. Mr Clifton’s evidence was that the appointment of an engineer as the person to witness the tests is ‘duly accepted in the industry, the hospital engineer would have an understanding of the gas systems in the hospital’ (Transcript p260).

207. The appointment by BLH of Mr Brightwell as the appropriate person under the Standard to witness the testing, which was confirmed by Ms Larkin, who said that Brightwell was responsible to “verify the necessary testing of the newly-installed outlets and panels had been undertaken (Transcript p240) in and of its self does not seem appropriate, nor to my mind compliant with the Standard. Implicitly BLH relied on Mr Brightwell to discharge that responsibility.

208. In those circumstances, it is not hard to see that Mr Turner thought that Mr Brightwell was the appropriate person to witness the testing.

209. Tragically, in any event, it did not matter, as Mr Brightwell signed off as having witnessed the testing when he had not done so.

210. At this point, I wish to comment on the procedure of witnessing the testing, and the commissioning of the work performed. I find it of great concern that the witnessing of testing of medical gasses that are piped into operating theatres in hospitals was allowed to be performed by someone with no medical or engineering training or qualification. It is hard to imagine a more crucial set of circumstances where the testing must be vigorous and independently witnessed. Although not explicitly defined in the Standard, caution would suggest that the final testing and commissioning be witnessed by a theatre nurse or anaesthetist, as persons experienced in the administration of medical gasses. That could not be difficult to organise, given that the work is done in the area where appropriately qualified medical staff would necessarily be present at most times. I would think that for safety reasons with regard to works done in areas where people are undergoing medical and surgical procedures and medical gases are being administered, the hospital ought appoint a more appropriate person to witness that the testing had been performed correctly and in accordance with the Standard.

211. The prosecution submits that the failures of the defendant are two steps. The first being with regard to the cutting-in process, the second being the testing and commissioning prior to handover.

212. The defendant submits that is not correct, that it is simply the failure of the testing procedure that is a one step program, because that procedure is fool proof.

213. The defendant’s case is that it matters not how the cutting-in process was done, because if the testing procedures as detailed in the testing forms had been followed correctly, the mistake would have been evident and risk could have been eliminated.

214. If the testing had been done by Mr Turner, and such testing had been witnessed by Mr Brightwell, the error would have been revealed.

215. I accept, however, whilst the testing process was in effect fool proof, it cannot be so when persons involved in the process engage in falsehoods.

216. Whether or not Mr Turner did the testing at all or inappropriately, he lied to Mr Brightwell, to the defendant and to BLH that the testing had been done at all or appropriately done. The Testing Forms were in triplicate – one for the installer (here Mr Turner), one for the company contracted to do the works (here the defendant) and one for the client (here BLH).

217. In signing the forms in the way he did, and then returning those forms to the defendant and BLH, he has represented to them that the work was done in accordance with the Forms, which it was not. He has therefore lied to the defendant and BLH.

218. Similarly, Mr Brightwell in signing the forms as having witnessed the testing, which he admits that he did not, he has lied to the defendant and his employer, BLH.

219. The handover process that had to occur before the theatres could be used, was corrupted by these lies. The introduced panels in the theatres could not be utilised until the appropriate commissioning testing had been done. It is only then that the works can be handed back to BLH, and the use of the theatres recommenced.

220. The babies were put at risk at the point in time the commissioning and handover was completed. They were put at risk because of the lies by Mr Turner and Mr Brightwell.

221. I do not accept that it was foreseeable for the defendant to anticipate that two workers performing duties with which they were both familiar, which they had both done before, would lie about what they in fact had done.

222. As such, the defendant cannot be held responsible for the behaviour of a disobedient worker, Mr Turner, for his conduct which I view as lying: Orr (supra) and Kirk (supra).

223. Mr Turner’s conduct in signing the forms as the testing having been done, or done appropriately, was not mere inadvertence or a mistake.

224. The application of common sense to the facts as described in Royall (supra) suggests that the conduct of Mr Turner and Mr Brightwell in lying cannot be attributable to the defendant. The complaints made by the prosecution that there was no appropriate SWMS or training of the workers, seem to pale in significance in circumstances where Mr Turner and Mr Brightwell lied. One could not be confident that even if they were both given additional training and more detailed SWMS, that they would have followed the procedures contained therein.

225. I am not satisfied beyond reasonable doubt that the prosecutor has proved Element 3.

ELEMENT 4 – Whether the defendant’s failure put persons at a risk of death or serious injury

226. For the reasons expressed I have not found that the defendant has breached its duty.

227. If I am wrong on that conclusion, and the particulars are established, then each of the pleaded failures would not have put the babies at risk because Mr Turner and Mr Brightwell chose to lie as to the testing having been done, or done appropriately and witnessed, when that was not the case.

228. In those circumstances, it seems unlikely that even if the particulars were established as breaches of the defendant’s duties under s 19 of the Act to not put people and specifically the babies at risk, there is no certainty that the workers, here Mr Turner and Mr Brightwell, would not tell lies about the work that was and was not done.

229. I am not satisfied beyond reasonable doubt that the prosecutor has proved Element 4.

CONCLUSION

230. The Prosecution has not proved all of the elements of the offence beyond reasonable doubt.

231. I will not enter final orders until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW).

232. I will list the matter on 01 June 2020 to determine the appropriate course.

ADDENDUM

Final Orders Made on 01 June 2020

233. I make the following final orders:

1. The prosecution has not proved all of the elements of the offence beyond reasonable doubt.

2. I find the defendant not guilty.

3. The Summons is dismissed.

4. I order the prosecution to pay the defendant’s costs as agreed or assessed.

5. I return the exhibits.

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Amendments

01 June 2020 - See addendum being final orders made on 01 June 2020

Decision last updated: 01 June 2020