Inspector Marilyn Lewis v Northern Sydney and Central Coast Area Health Service - [2006] NSWIRComm 61 - NSWIRComm 2006 case summary — Zoe

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Inspector Marilyn Lewis v Northern Sydney and Central Coast Area Health Service

[2006] NSWIRComm 61

Industrial Relations Commission (NSW)|2006-07-01|Before: Backman J, Boland J

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Court

Industrial Relations Commission (NSW)

Decision date

2006-07-01

Before

Backman J, Boland J

Catchwords

instructions

Source

Original judgment source is linked above.

Catchwords

instructions

Judgment (83 paragraphs)

[1]

CITATION: Inspector Marilyn Lewis v Northern Sydney and Central Coast Area Health Service [2006] NSWIRComm 61

[2]

Prosecutor: Inspector Marilyn Lewis PARTIES: Defendant: Northern Sydney and Central Coast Area Health Service (ABN 48 344 669 728)

[3]

CATCHWORDS: Occupational health and safety - plea of guilty to one offence under s 15(1) of the Occupational Health and Safety Act 1983 - factual particulars disputed by the defendant - defendant's employees become ill after exposure to chemical fumes from a product supplied for the operation of its x-ray processing machine - whether the product was a hazardous substance under the Occupational Health & Safety (Hazardous Substances) Regulation 1996 - whether the product was used without adequate material safety data sheets; appropriate templates or appropriate advice regarding its chemical constitution - whether defendant failed to conduct an adequate assessment of the risks to health and safety posed by the product - whether failure to provide adequate ventilation - whether failure to provide adequate information; instructions; training and supervision - maximum penalty where subsequent offence but prior conviction under occupational health and safety legislation - consideration of s 51A of the 1983 Act - whether risk to safety was reasonably foreseeable - deterrence - remedial steps - consequence of the breach - prior safety system - personal factors - application s 10 Crimes (Sentencing Procedure) Act 1999 considered and refused - penalty - orders - costs.

[36]

1.12 The defendant failed to provide adequate training, instruction and supervision to employees working with the Fuji Hunt Product in the department; 11 Evidence was heard over a number of days during which the prosecutor sought to establish each of the disputed matters to the requisite standard. 12 By way of brief background, on or about 28 May 2001 Hanimex Pty Limited (Hanimex) commenced supplying the defendant with an x-ray developer known as Fuji Hunt Automatic X-ray Developer Replenisher Parts A, B and C (the Fuji Hunt product). Each part was contained in a separate bottle. Contents which were printed on the label of the Part C bottle included the substance glutaraldehyde at a concentration of 50-55%. This was a much higher level than had been indicated on the previous X-ray developer used at Wyong hospital by the defendant which had also been supplied by Hanimex (the Ilford product). Part A according to the label contained quantities of hydroquinone and potassium hydroxide. Part B contained acetic acid. Clause 7 of the Occupational Health and Safety (Hazardous Substances) Regulation 1996 requires a manufacturer or importer before supplying a substance for use at work to first ascertain whether it is listed in a document entitled List of Designated Hazardous Substances. This list is prepared by the National Occupational Health and Safety Committee (NOHSC). A report of Dr Maxwell Thomas McEwan which formed part of the evidence during the proceedings examined the content of Material Safety Data Sheets (MSDS) generated in Singapore and supplied by Hanimex to the defendant on about 20 July 2001. Several findings in the report are based on a number of chemical ingredients contained in Part A of the Fuji Hunt product. These chemical ingredients include potassium hydroxide, hydroquinone and various sulphites which according to the report are possibly classifiable as hazardous under the List of Designated Hazardous Substances depending on the level of concentration of the particular chemical in the product. The report also states that glutaraldehyde (present in Part C) is the most readily recognised hazardous substance associated with the x-ray developing process although as I understand the report's findings in this regard the concentration of glutaraldehyde in Part C must be equal to or more than 10% to be classified as hazardous in accordance with the list. Nevertheless the report refers to the chemicals as "potentially hazardous substances" in the context of a failure to classify their hazardous nature in the Singapore MSDS supplied to the defendant. A second report by Associate Professor Chris Winder which formed part of the evidence proceeds upon the basis that the Fuji Hunt product contained materials which were classifiable as hazardous substances. 13 The Fuji Hunt product was delivered to Wyong hospital without any accompanying MSDS. According to the evidence MSDS were not received by the defendant until about 20 July 2001. Minutes of a radiographers' meeting held on Friday 20 July 2001 at the defendant's Gosford premises record the following item:

[38]

The MSDS were prepared in Singapore and did not in certain respects conform to requirements under Australian law. The prosecutor has also alleged that they were deficient. I will return to this aspect of the prosecutor's case in more detail shortly. 14 Under the terms of clause 15 of the Regulation the defendant as an employer was required to obtain MSDS for each hazardous substance supplied to its place of work either before or on the first occasion on which the substance or substances were supplied. The defendant's obligation under the clause also extended to ensuring that MSDS were readily accessible to any employee who could be exposed to a hazardous substance. The terms of this clause serve to indicate the various requirements under Australian law placed on employers with regard to the provision, receipt and content of MSDS. 15 Besides the delivery of the Fuji Hunt product on 28 May 2001 further deliveries to Wyong hospital occurred on 27 June 2001 and 3 August 2001. One delivery of the product was made at Gosford hospital on 26 July 2001. According to the evidence of Robert Martin Broug a technical officer employed by the defendant working in the medical imaging department at Wyong hospital he first became aware of the Fuji Hunt product sometime in early July 2001 when he was contacted by a co-worker, Robyne White. Mr Broug had a number of concerns about the new product. One concern was that templates or mixer plates for the product had not been received from Hanimex. The templates used for the outgoing Ilford product did not fit the bottle size of the new product. These templates had a particular purpose which was to prevent the product splashing from the mixers. Another concern was that the glutaraldehyde level (50 - 55%) printed on the bottles of the Fuji Hunt product was much higher than the level indicated on the Ilford product. Mr Broug advised his supervisors of his concerns. He and other employees of the defendant contacted Hanimex attempting to obtain MSDS for the new product. When the MSDS arrived Mr Broug noticed an anomaly between the amount of glutaraldehyde (5 -10%) indicated in the MSDS and the amount (50 - 55%) indicated on the label of the Part C bottle. His attempts to obtain some explanation for the anomaly from Hanimex were unsuccessful. Attempts by Mr Broug to obtain the correct templates from Hanimex also proved unsuccessful. Mr Broug as a last resort adapted the templates used for the Ilford product to accommodate the Fuji Hunt product bottles. He did this by cutting the Ilford product templates with a jigsaw. 16 The Fuji Hunt product was used at Wyong hospital for the first time on 27 July 2001. Early that day Mr Broug purged the system. He emptied the processor tanks of all the old chemistry, washed and rinsed the processor and mixer tanks and the replenishment lines. Water was then poured into the tanks followed by the chemistry. By the time Mr Broug had completed those tasks other staff had begun arriving at the hospital. Mr Broug checked that the film quality was all right. At about that time he received complaints about the smell of the chemistry. Soon after his skin began to burn and his eyes became irritated. Mr Broug recorded the incident that day in a Communications Book. Part of his entry in the book read:

[44]

Note: Ashley Peters, Bob Broug and other staff in the area experienced various reactions to the new chemicals - smell, stinging eyes + irritated throats were some of the problems. 19 Robyne White, a radiographer employed by the defendant at the time of the offence also said in evidence that she mixed the new chemicals sometime around the end of July 2001. She thought the date may have been 28 July 2001. She recalled that earlier she had had a conversation with Mr Broug during which they discussed the new chemicals. She said that the boxes containing the new chemicals were marked "new" and a notation was made on a whiteboard to the effect that the chemicals were not to be used. Mr Broug she said nevertheless used them on 27 July because the hospital had run out of the old brand. Shortly after that she also used the new chemicals. She experienced runny eyes. She observed that the new chemistry was different in colour from the old brand and that it was foaming, "...like a head of beer". She made an entry in the Hazard Register recording her observations. She also thought she contacted Mr Broug and Mr Horner about the incident. No one she said gave her any instructions following the incident. No one instructed her, for example, to refrain from using the new chemistry. 20 On Friday 10 August 2001 Mr Broug purged and cleaned the chemicals from the x-ray processing machine. The reason he did this was because of the complaints from staff about the smell of the new chemistry and the scum in the tanks. At this stage there had been between eight to twelve mixes of the new chemistry by radiographers. When Mr Broug commenced purging and cleaning he first noticed a scum forming in the tanks which later formed into granules. Mr Broug wore protective clothing at the time including a face mask. He felt a burning sensation on his skin. Other people had gone to casualty complaining of feeling ill. Mr Broug developed a bad headache and went to casualty where he said he was diagnosed with high blood pressure. Shortly after that the department was closed down. Later Mr Broug was asked to return to the department and retrieve a sample. That evening Mr Broug experienced hot burning eyes which he said was akin to conjunctivitis. The next morning he could not open his eyes. His nose was bloodied. He also felt very depressed and developed a rash. 21 Ms White started work at Wyong Hospital on 10 August 2001. Upon entering the building she noticed a very strong smell. She saw Mr Broug cleaning the processor. She opened a number of doors in order to let in some fresh air. Later she felt dizzy, nauseous, a burning and tightness in her chest and she developed a severe headache. After spending several hours in accident and emergency she filled out an Incident Report and drove home. 22 Nurse Haywood was also on duty on 10 August. She recalled a strong chemical smell at Wyong hospital that day and developed a number of symptoms including headache, nausea, burning on the skin and an ache in the stomach area. She also spent time in accident and emergency. 23 Mr Peters on 10 August 2001 also experienced adverse effects after smelling what he described as an odorous smell in the medical imaging department at Wyong hospital. He attended the casualty section of Wyong hospital for treatment. 24 Francis Leung the manager of the medical imaging department on 10 August 2001 and one of Mr Broug's supervisors explained that on that day Ms White contacted him and told him that staff at Wyong hospital had been overcome by chemical fumes from the Fuji Hunt product. Mr Leung instructed her to close the department and then seek medical assistance. He then contacted Hanimex and spoke to John Gaunt. Mr Gaunt promised to send a technician to Wyong hospital to clean the processor and remove the Fuji Hunt product. Mr Leung then rang the director of medical services of Wyong hospital, Dr Andrew Lancaster and informed him of the incident and of his decision to close the department. He asked Dr Lancaster to increase the ventilation in the department in order to get rid of the fumes. Later that day a technician from Hanimex, Martin De Rooy arrived at Wyong hospital and after some brief instructions from Mr Broug he proceeded to flush the system through, remove the Fuji Hunt product and replace it with Ilford product that he had collected from Gosford hospital en route to Wyong hospital. Mr De Rooy did not, contrary to Mr Leung's request to Mr Gaunt, remove the Fuji Hunt product from the premises. Nor did Mr Leung who assumed it would be removed check to ensure that it had been removed. Nor it appears were any weekend staff told of the incident of 10 August 2001 or given any instruction about using the Fuji Hunt product. 25 Mr Broug understood from what he had been told by Mr Leung that after 10 August all Fuji Hunt products had been removed from Wyong hospital. The failure to remove the product or to ensure that it was removed had the predictable result that it was used again on the weekend to top up the developer mixing tank, attached to the x-ray processing machine. 26 On Monday 13 August 2001 staff again complained of an offensive odour. In addition certain staff complained of symptoms similar to those experienced by staff on 10 August 2001. The department remained open for a short period that day and then later was closed. 27 At some stage between 13 August 2001 and on or prior to 23 August 2001 the Fuji Hunt product was removed by Hanimex from Wyong hospital and sent to Chemika Pty Limited. A letter of that date from Mr Gaunt to Dr Doughty then the chief chemist at Chemika Pty Limited requests an analysis of the Fuji Hunt product by Dr Doughty in order to ascertain the identity and contents of the chemistry and the mix by concentration of that chemistry, so that Hanimex can,

[46]

This concentration falls below the range of 5-10% w/w glutaraldehyde indicated on the MSDS for the product. 29 On 15 October 2002 Dr Max McEwan, a senior inspector employed by the WorkCover Authority of NSW attended Wyong hospital and collected samples of the Fuji Hunt product. He marked those samples Batch 175 and Batch 163. On 5 November 2002 Dr McEwan analysed the samples to ascertain pH values. His conclusion was that Part C of Batch 163 was significantly more acidic (pH 1.9) than had been indicated on the Singapore MSDS (pH 5.5). John Kilford, a chemist, in a report dated 1 October 2003 observed that the pH value of 1.9 found in Part C of Batch 163 was one thousand times in excess of the level of acidity that should normally be present. Part C of Batch 175 was found to have a pH of 4.7 which closely conformed to the predicted level in the MSDS. Dr McEwan speculated that the increased acid levels found in Batch 163 were consistent with the possible release of irritant/corrosive material as reported by the radiographers employed by the defendant. Dr McEwan also tested the pH levels of hydroquinone and glutaraldehyde contained in Batches 163A and 175A and Batches 163C and 175C respectively. He found that the levels did not differ from the predicted levels in the Singapore MSDS, and concluded that, "no cause for batch mist generation" could therefore be found in the sample analysed. 30 In January 2004 Dr Doughty also tested the pH values in samples from Batches 163 and 175. Dr Doughty also found a pH value of 1.9 for Part C of Batch 163. He noted however that Part C contained glutaraldehyde sodium bisulphite which he said is a component likely to degrade over time to form sulphur dioxide. Sulphur dioxide in turn forms acidic solutions making it more likely that the solution would become more acidic over time. Finally Dr Doughty observed that because his results were based on samples which were tested at least two and a half years after manufacture (January 2004) that no conclusions were possible as to the pH values of the solutions at the relevant time (which for present purposes would be August 2001). Whether the Fuji Hunt product was a hazardous substance under the Regulation 31 It is not entirely clear from the evidence outlined above that all the substances identified in the Singapore MSDS for the Fuji Hunt product fit the classification of hazardous substances under the Regulation. One means of determining whether a substance is a hazardous substance is to ascertain under clause 7 of the Regulation whether it is in the List of Designated Hazardous Substances. Another way is to ascertain whether it fits certain criteria set out in the "Approved Criteria for Classifying Hazardous Substances". Dr Winder concluded generally that the Fuji Hunt product contained materials which were "classifiable" as hazardous substances without nominating any particular constituent parts or chemicals that might fit the categories. According to Dr McEwan when a chemical is not on the List it may be classified as hazardous according to the approved criteria. A number of chemicals which made up the Fuji Hunt product however appear on the List. These include potassium hydroxide at a concentration greater than or equal to 5%; hydroquinone at a concentration equal to or more than 25%; and, glutaraldehyde at a concentration equal to or more than 0.5%. In the Singapore MSDS the concentration of potassium hydroxide is said to be 1-5% by weight and hydroquinone 5-10% by weight. The glutaraldehyde content is said to be 5-10% by weight. This means that potassium hydroxide and glutaraldehyde are both hazardous substances under the Regulation and I so find beyond reasonable doubt. 32 It is another issue however as to whether the product or any of its constituent parts nevertheless posed a risk to the safety of the defendant's employees. This issue will be examined in detail shortly. Was the defendant aware that the Fuji Hunt product was delivered without MSDS, appropriate templates or advice on its chemical constitution 33 The first delivery of the Fuji Hunt product was made to Wyong hospital on 28 May 2001. Minutes of the radiographer's meeting confirm that the hospital did not receive MSDS until about 20 July 2001. Other evidence which corroborates this sequence of events was also given by Mr Broug and Mr Leung. The same two witnesses also gave evidence that when the product arrived it was not accompanied by the correct templates. Instead after repeated and unsuccessful attempts by Mr Broug to attain them, Mr Broug was forced to resort to adapting the Ilford product templates with the aid of a jigsaw. Whether or not the use of these adapted templates had an impact on the risk to safety posed by the use of the product is another issue to which I will come shortly. The only advice on the chemical constitution of the product at the time of its delivery and before the arrival of Singapore MSDS, appeared on the labels on the bottles and on the boxes. On the box containing Batch 163 of the product certain information was written about the chemical components contained in Parts A, B and C. This information was reproduced on the labels of each bottle belonging the batch. The contents of Part C were said to contain:

[52]

36 In my view the Fuji Hunt product was used on 10 and 13 August 2001 without the correct templates and without accurate advice on its chemical constitution. As regards the templates Mr Broug was forced to adapt Ilford templates after several unsuccessful attempts to obtain Fuji Hunt templates. The evidence is not however conclusive as to whether this could have had an adverse impact on the safety of employees. There is no evidence for example that the use of adapted templates caused a chemical spill or caused chemical splashing. Dr Doughty in a second report dated 21 January 2004 noted that the use of the product without appropriate templates did not restrict the chemicals being added to the mixer tank to those contained in the Fuji Hunt product bottles. This meant that the use of the adapted templates could have increased the risk of incorrect chemicals being added. Apart from this comment there is little else in the evidence to suggest that a failure to prevent the use of the adapted templates posed a risk to the safety of the defendant's employees. Associate Professor Winder's report speculates that if the adapted templates had caused leakage of chemicals on top of the mixer then this could have contributed to the production of some irritating vapours but could not have accounted for the production of froth and scum and vapours sufficient to produce symptoms of irritation and toxicity. 37 It remains to consider here whether the evidence has disclosed a failure to ensure that the Fuji Hunt product was not used without adequate MSDS or appropriate advice regarding its chemical constitution. It is convenient in my view to consider the evidence concerning the Singapore MSDS and the available advice on the chemical constitution of the product together as the two areas overlap considerably. The relevant time frame in which to consider them is sometime following the use of the product at Wyong hospital for the first time that is on or after 27 July 2001. At that time the defendant had in its possession the Singapore MSDS and Mr Broug had been made aware of the disparity between the stated concentrations of glutaraldehyde on the box and bottle labels of Batch 163 and on the MSDS. 38 The Singapore MSDS were plainly inadequate in the context of what was required to be contained in such documents under the Regulation. The issue I am concerned with however is whether the content of these MSDS was sufficiently adequate or not adequate enough to obviate any risk to the safety of the defendant's employees who were using the product. Those who used the product on the evidence were Mr Broug and the radiographers. It was through Mr Broug's efforts and others that the Singapore MSDS came into the defendant's possession in the first place on 20 July 2001. Meanwhile, again chiefly through Mr Broug's efforts the radiographers were made aware first that the glutaraldehyde concentration on the bottles was much higher than other products, secondly the date when the MSDS arrived and, thirdly, the contents of those MSDS. Minutes of the radiographers' meeting of 20 July 2001 held at Gosford referred to earlier in this judgment confirm these matters. 39 It follows from this account of the evidence that those who used the product were in fact aware of the Singapore MSDS and their contents as early as 20 July 2001, that is one week before it was used for the first time, whether through the efforts of Mr Broug, the defendant's efforts or otherwise. Moreover, the MSDS contained clear indications of the dangers and risks to safety associated with the use of the product. Parts A and B of the MSDS for example under the heading "Hazard Identification" warn against potential health effects which are described as "corrosive to eyes...to skin...to respiratory tract and mucus membranes...". Part C in addition warns that contact on the skin can cause "severe irritation" and that ingestion may cause nausea and vomiting. This information would instantly alert any reader to the risks to safety posed by the product. It follows from this that the MSDS while they may have been deficient in terms of the requirements under the Regulation were not deficient in the sense that they failed to highlight certain dangers and hazards associated with the use of the chemicals. Instead the MSDS clearly indicated various risks to safety arising from the use or exposure to the chemicals. These facts do not provide sufficient evidence of the requisite causal link between the defendant's failure to ensure that its employees did not use the product without adequate MSDS, appropriate templates or appropriate advice regarding its constitution and the risk to safety. I am therefore not satisfied that particular 1.7 so described has been made out by the prosecutor beyond a reasonable doubt. The defendant failed to conduct an adequate assessment of the risks to health and safety posed by the Fuji Hunt product.

[61]

48 In submissions the prosecutor dealt with the two particulars concerning information, instruction, training and supervision to employees together. I intend to approach them in the same way. 49 It is apparent on the evidence in my view that the defendant provided little, if any, information and instruction to its employees about the risks associated with the product. This failure to provide information and instruction has to be recognised against the background of the events of 27 July 2001 when a risk to safety from the use of the product was clearly identified. A number of affected employees had recorded their experiences in the Communications Books and also in the hazard register yet according to their evidence the defendant had made no attempts to inform, instruct or train any of them about the likely consequences of such an event or possible preventative measures. It seems there had been no feedback at all. Mr Broug as a result of his own efforts had obtained the MSDS and attempted to compare the glutaraldehyde concentration stated on the Fuji Hunt box and labels with other samples. His expertise and limited training however precluded him from conducting anything other than a rudimentary examination. Moreover Mr Broug had discussed his concerns with his supervisors Mr Horner and Mr Leung. Even when the decision was made to remove the product from the premises after the incident on 10 August, the defendant did nothing to ensure it had been removed. As a result uninformed and uninstructed staff over the weekend preceding 13 August mixed the product and it was used again on 13 August 2001 with deleterious results. 50 Mr Broug who worked with the product was not given any training instruction or supervision by the defendant on how to perform his work safely. He had received no instruction or training for example in how to identify any risks associated with the use of new chemistry. Mr Broug had some training in the use of personal protective equipment and the safe handling of chemistry. This latter training involved the disposal of empty bottles and dealing with potential chemical spills. He received no instructions in relation to the use of the Fuji Hunt product. 51 Ms White received no instructions concerning any dangers relating to the use of the product and had received no training from the defendant in the use of chemistry generally. She received no training instruction or information from the defendant in relation to the use of the Fuji Hunt product. Other radiographers including Mr Peters were similarly untrained uninstructed and uninformed by the defendant about the use of the product. 52 Despite the fact that the Fuji Hunt product was a new product the defendant took no steps at all to inform or instruct those who worked in the department. This is notwithstanding the concerns raised by Mr Broug, and, the events of 27 July 2001. Given the circumstances of 27 July when it became obvious that the new product posed a risk to safety the need to instruct and train persons in relation to the product should have been accorded the highest priority. 53 The defendant's failure to provide adequate information and instructions to employees to ensure they were informed of risks to their health and safety identified in relation to the Fuji Hunt product, and, the defendant's failure to provide adequate training, instruction and supervision to employees working with the product, exposed employees to a risk to their health and safety and I so find beyond reasonable doubt. Consideration of sentencing principles

[68]

63 A second affidavit relied upon by the defendant in these proceedings, the affidavit of Dianne Jean Chiofalo sworn 23 May 2005, attests to the defendant's commitment to occupational health and safety systems, practices and procedures in existence prior to the offence. These systems should be assessed against the then size and structure of the defendant. It was a large organisation employing approximately 3,000 full-time staff and administering public health services to some 310,000 persons in Wyong Shire and in Gosford city. (Later, on 1 January 2005, two Area Health Services merged to form the Northern Sydney and Central Coast Area Health Service which presently provides care for approximately 1.1 million people.) In 2001, the defendant had twenty five OHS committees. As at August 2001, health surveillance (medical monitoring) was provided to employees who may be exposed to hazardous substances in accordance with statutory requirements. OH&S policies and procedures were available via the intranet or in hard copy in each ward or department. These included specific procedures, together with standard work practices, risk assessment forms and job safety analysis forms. An emergency flip chart was also available at all facilities, including the medical imaging department at Wyong hospital during July and August 2001. This chart provided information on emergency procedures. In addition, all staff were trained in its use. Safety equipment and personal protective equipment have been provided and maintained at each workplace for the use of employees and contractors. The defendant has also remained committed to ensuring safety. This is reflected, for example, in its implementation of the practice that all incidents are reported and recorded in a Hazards Register, Communications Book or some other document. (I note in this regard that several employees took the step of recording their experiences in various documents following the incidents of 27 July and 10 August 2001.) In 2001/2002, the defendant donated some $625,412 towards an occupational health and safety unit now known as the workplace injury and management service. 64 The foregoing matters I take into account as mitigating the otherwise objective seriousness of the offence. Subsequent offence

[77]

...it is critical when determining a sentence to clearly distinguish those factors which are special considerations in sentencing, and in particular those which warrant the application of s 10 of the Crimes (Sentencing Procedure) Act . In our view, the utterance of the above words alone is insufficient, in our view, to justify the making of an order under s 10 of the Crimes (Sentencing Procedure) Act . Given the existence of a clear line of authority establishing that such orders are available only in limited circumstances, any decision to make such an order must necessarily include an examination of the relevant circumstances and an explanation as to why those circumstances fall within the limited class of circumstances contemplated by the established authorities. The Full Bench in Profab Industries expressly stated (at [26]) that "...when a defendant seeks [the exercise of the discretion under s 10] cogent reasons must, in our view, be provided by the defendant for such exercise and also by the judge acceding to that submission." 75 In my view the application of the section is entirely inappropriate to the present circumstances. While the defendant had in place prior to the offence a comprehensive and impressive system of safety policies and procedures, which is evidence of its positive commitment to occupational health and safety issues, and, a previous good record, these matters do not of themselves justify the application of s 10. The offence was clearly a serious offence. The defendant knew of the risk to safety at least two weeks before the date of the offence yet took no steps to obviate that risk. The risk to safety was itself a serious risk which manifested in serious injuries to several members of staff following their exposure to chemical fumes on 27 July and 10 and 13 August 2001. Notwithstanding that the chemistry was new no efforts were made to test it to ensure that the premises, machinery and equipment were all safe to use. Adequacy of the ventilation in the medical imaging department for example was not assessed in relation to the possibility of adverse effects from exposure to vapour or fumes that may arise from use of the new chemistry. Between 10 and 13 August 2001 despite exposure to staff on a prior occasion of the new chemistry and consequent harmful side effects, no serious attempts were made by the defendant to remove or isolate the product or ensure someone else removed or isolated it. The defendant issued no instruction, or information to its staff in relation to the use of the product and implemented no training or supervision regime following staffs' exposure to the product and its harmful effects. Penalty

Inspector Marilyn Lewis v Northern Sydney and Central Coast Area Health Service

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