The man responsible for a gas-mix up at a Sydney hospital which left one baby dead and another with permanent brain damage has been fined by the New South Wales District Court.
Christopher Turner was a contractor working for BOC Limited at the time he mixed-up the pipes, resulting in the tragedy.
Mr Turner pleaded guilty in February 2020 to failing to comply with a health and safety duty under section 32 of the Work Health and Safety Act 2011 (NSW)
The sentencing hearing was delayed last month as Mr Turner’s lawyers sought an adjournment from the NSW Attorney-General, with a view to seeking an indemnity to prevent any evidence given from being used against their client during other trials involving BOC Limited.
Mr Turner faced the possibility of $125,000 fine, but had it reduced because of his guilty plea, his evidence of remorse and his assistance to police with their investigations.
The case was brought by SafeWork NSW and the offence of failing to comply with a health and safety duty does not come with the potential for a term of imprisonment.
Rather, section 32 of the Work Health and Safety Act 2011 provides that an individual is liable to a fine of up to $150,000 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.
The maximum fine increases to $300,000 in the case of a person conducting a business, or $1.5 million for a corporation.
A conviction was, however, recorded against Mr Turner and he was ordered to pay a $100,000 fine as well as court costs.
Newborn John Ghanem died, and Amelia Khan was left with permanent brain damage after nitrous oxide was mistaken for oxygen during resuscitations at Bankstown-Lidcombe Hospital in 2016.
While nitrous oxide is regularly used for treatment of adults, it can be fatal to babies. Amelia Khan was given the gas for 60 minutes after being born.
An investigation was launched into the incident by the Chief Health Officer, which found that that a series of errors led to the babies being given the wrong gas. These errors included failings in the installation of the piping, the mislabelling of pipes and a failure to conduct proper procedures after the installation – including failing to have an anaesthetist present when the lines were checked.
Following the catastrophe, an extensive audit of all medical gas outlets installed in NSW Health facilities was conducted.
Khan Family civil suit is underway
Over and above Mr Turner’s mix-up, the Sentencing Judge made remarks to the effect that he had lied on forms, falsely declaring that he had carried out testing on the pipes. Such testing could have averted the tragedies, the Judge remarked.
Amelia Khan’s parents have filed a civil suit because their young daughter now requires a feeding tube and around-the-clock nursing care as a result of the mix-up.
The claim alleges that BOC are vicariously liable for the actions on their contractor.
Under the law, negligence includes a failure to take reasonable care to avoid causing a reasonably foreseeable injury or loss to another person.
There are specific steps in proving negligence, including establishing that:
- The defendant owes a ‘duty of care’ to the plaintiff,
- The defendant’s conduct or inaction did not meet the standard of care of a reasonable person would in the circumstances,
- Foreseeable injury or loss suffered occurred as a result.
Unless a settlement is reached, the case will be decided by the Supreme Court of NSW.