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SafeWork NSW v Christopher Turner

SafeWork NSW v Christopher Turner

Case [2020] NSWDC 180 8 May 2020

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District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Christopher Turner [2020] NSWDC 180
Hearing dates: 30 April 2020
Date of orders: 08 May 2020
Decision date: 08 May 2020
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   The offender Christopher Turner is convicted.
(2)   The appropriate fine is $125,000 but that will be reduced by 15% to reflect the plea of guilty and by 5% to reflect willingness to assist by giving evidence in other proceedings. The total reduction will be 20%.
(3)   Order the offender Christopher Turner to pay a fine of $100,000.
(4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
(5)   Order the offender Christopher Turner to pay the prosecutor’s costs as agreed or assessed.

Catchwords:
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty

COSTS – prosecution costs
OTHER – existing pipe in hospital carrying nitrous oxide was incorrectly labelled as oxygen — offender was a contractor working in the medical gas industry who failed to take reasonable care — offender did not adequately test for cross-connection of newly installed neonate oxygen port — offender did not adequately inspect the oxygen concentration of the newly installed neonate oxygen port — offender failed to conduct the relevant testing in the presence of a hospital staff member experienced in the administration of medical gases to patients — nitrous oxide mistakenly administered to two newborn babies during emergency resuscitation — offence falls in the high range of objective seriousness
Legislation Cited: 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
Work Health and Safety Act 2011 (NSW), ss 3, 4, 12A, 28, 32, 155, 230, Sch 2
Cases Cited: 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
Texts Cited: Australian Standard AS 2896-2011 Medical Gas Systems – Installation and testing of non-flammable medical gas pipeline
Occupational Health and Safety Law NSW, Butterworths…

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.

Continue reading SafeWork NSW v Christopher Turner

Details

AGLC: SafeWork NSW v Christopher Turner [2020] NSWDC 180
Case: [2020] NSWDC 180
Decision Date: 08 May 2020

CaseChat Overview and Summary

SafeWork NSW prosecuted Christopher Turner for his role in a work health and safety incident that resulted in two newborn babies being mistakenly administered nitrous oxide instead of oxygen during emergency resuscitation. Turner, a contractor working in the medical gas industry, was found to have failed in his duty to take reasonable care by not adequately testing for the cross-connection of a newly installed neonate oxygen port and not inspecting the oxygen concentration. The error occurred because an existing pipe in the hospital was incorrectly labelled as carrying oxygen, leading to the tragic incident. The court had to determine the objective seriousness of the offence, consider Turner's plea of guilty and his willingness to assist by giving evidence in other proceedings as mitigating factors, and weigh these against the need for general and specific deterrence.

Turner's actions were found to fall in the high range of objective seriousness due to the potential for death or serious injury. The court recognised his plea of guilty and willingness to assist as mitigating factors but also noted the absence of reasonable care as an aggravating factor. Turner was convicted and sentenced to a fine of $125,000, which was reduced by 20% to reflect the mitigating factors. The court ordered that 50% of the fine be paid to the prosecutor and that Turner pay the prosecutor's costs as agreed or assessed.

The court's final orders included a conviction for Turner, a fine of $100,000, and the payment of 50% of the fine to the prosecutor, along with an order for Turner to pay the prosecutor's costs. This decision underscores the importance of taking reasonable care in high-risk environments and the significant consequences that can result from failures in duty of care.

Orders

Orders of the court

(1) The offender Christopher Turner is convicted.

(2) The appropriate fine is $125,000 but that will be reduced by 15% to reflect the plea of guilty and by 5% to reflect willingness to assist by giving evidence in other proceedings. The total reduction will be 20%.

(3) Order the offender Christopher Turner to pay a fine of $100,000.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

(5) Order the offender Christopher Turner to pay the prosecutor’s costs as agreed or assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

SafeWork NSW v Christopher Turner [2020] NSWDC 180

Most Recent Citation

SafeWork NSW v Scharfe [2021] NSWDC 260

Cases citing this decision · 2 of 2 shown

McColm (Department of Regional NSW) v Tucker
[2025] NSWDC 199 Para 2

…Failure by a worker to conduct testing of gas supply in a hospital, which he certified had been undertaken: SafeWork NSW v Turner [2020] NSWDC 180.…
SafeWork NSW v Scharfe
[2021] NSWDC 260 Para 2

…Failure by a worker to conduct testing of gas supply in a hospital, which he certified had been undertaken: SafeWork NSW v Turner [2020] NSWDC 180.…

View all 2 citing cases →

Cases cited in this decision · 10 of 10 shown

Unity Pty Limited v SafeWork NSW
[2018] NSWCCA 266 Para 123

…In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:…
Bulga Underground Operations v Nash
[2017] NSWCCA 96 Para 98

…regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited ; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. His Honour Justice Basten at par 34, under the heading “Assessment of Risk” said:…
Bulga Underground Operations Pty Ltd v Nash
[2016] NSWCCA 37 Para 106

…safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].…
Mahdi Jahandideh v The Queen
[2014] NSWCCA 178 Para 122

…exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.…
Muldrock v The Queen
[2011] HCA 39 Para 97

…cuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgment without any…
BW v R
[2011] NSWCCA 176 Para 97

…ive seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].…
R v Wilkinson (No. 5)
[2009] NSWSC 432 Para 98

…ng circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].…
R v McNaughton
[2006] NSWCCA 242 Para 96

…sed to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].…
Baumer v R
[1988] HCA 67 Para 97

…The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of t…
Veen v The Queen (No 2)
[1988] HCA 14 Para 96

…hat a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of the cri…

Legislation cited in this decision · 4

Work Health and Safety Act 2011 (ACT)
12A, 155, 230, 28, 3, 32, 4 8 mentions (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
21A, 22, 23, 3A 6 mentions (from Para 89)
Fines Act 1996 (NSW)
122, 3, 4, 6 5 mentions (from Para 122)
Health Services Act 1997 (NSW)
17 1 mention

Medium Neutral Citation:	SafeWork NSW v Christopher Turner [2020] NSWDC 180
Hearing dates:	30 April 2020
Date of orders:	08 May 2020
Decision date:	08 May 2020
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) The offender Christopher Turner is convicted. (2) The appropriate fine is $125,000 but that will be reduced by 15% to reflect the plea of guilty and by 5% to reflect willingness to assist by giving evidence in other proceedings. The total reduction will be 20%. (3) Order the offender Christopher Turner to pay a fine of $100,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. (5) Order the offender Christopher Turner to pay the prosecutor’s costs as agreed or assessed.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty COSTS – prosecution costs OTHER – existing pipe in hospital carrying nitrous oxide was incorrectly labelled as oxygen — offender was a contractor working in the medical gas industry who failed to take reasonable care — offender did not adequately test for cross-connection of newly installed neonate oxygen port — offender did not adequately inspect the oxygen concentration of the newly installed neonate oxygen port — offender failed to conduct the relevant testing in the presence of a hospital staff member experienced in the administration of medical gases to patients — nitrous oxide mistakenly administered to two newborn babies during emergency resuscitation — offence falls in the high range of objective seriousness
Legislation Cited:	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 Work Health and Safety Act 2011 (NSW), ss 3, 4, 12A, 28, 32, 155, 230, Sch 2
Cases Cited:	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
Texts Cited:	Australian Standard AS 2896-2011 Medical Gas Systems – Installation and testing of non-flammable medical gas pipeline Occupational Health and Safety Law NSW, Butterworths…