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]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWDC 156
Decision Date: 30 April 2020

CaseChat Overview and Summary

SafeWork NSW brought a prosecution against BOC Limited, a company involved in the supply of industrial gases, for an alleged offence under the Work Health and Safety Act 2011 (NSW). The offence arose from an incident where babies were exposed to nitrous oxide, which had inadvertently contaminated the medical gas supply. The court had to determine whether BOC Limited had breached its duty of care under the Act by failing to take reasonably practicable measures to ensure the safety of the gas supply. The primary issue before the court was whether the measures BOC Limited had implemented were reasonably practicable in the circumstances. This involved examining the company's safety management system, its objective knowledge of the risks involved, and the foreseeability of the incident. The court also considered whether the company could be held liable for the unforeseeable actions of a disobedient worker and for the falsification of records.

The court found that while the contamination of the gas supply was a foreseeable risk, the prosecution had not proven beyond reasonable doubt that BOC Limited had failed to take all reasonably practicable measures to prevent it. The court held that the company's safety management system was robust and that the contamination was due to an unforeseeable act by a worker. The court also noted that the company had no objective knowledge of the worker's disobedience or the falsification of records. The court emphasised that for a breach of duty to be established, the prosecution must prove that the defendant failed to take all reasonably practicable measures to ensure safety, and that the risk was reasonably foreseeable. The court found that the prosecution had not met this burden of proof.

The court ordered that the prosecution had not proved all of the elements of the offence beyond reasonable doubt. It dismissed the summons and found the defendant not guilty. The court ordered that the prosecution pay the defendant's costs as agreed or assessed and returned the exhibits. The court indicated that it would list the matter for a further hearing to determine the appropriate course of action, pending any appeal by the prosecution.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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]…