SafeWork NSW v BOC Limited

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.