SafeWork NSW v BOC Limited [2020] NSWDC 156

District Court New South Wales

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