This month, the Melbourne County Court imposed a significant fine on the director and company operating an oxygen therapy provider after a client died following hyperbaric oxygen therapy.

WorkSafe Victoria v Oxymed Pty Ltd (2021) is an example of the critical importance of assessing the risks of injury to which third parties may be exposed arising out of your business or undertaking.

This case involved Oxymed Pty Ltd, which is an oxygen therapy provider offering hyperbaric oxygen therapy. Hyperbaric oxygen therapy involves supplying pure oxygen to a person in a pressurised environment. The increased air pressure is intended to allow a patient’s lungs to absorb more oxygen than would normally be possible.

In or around April 2016, a long-term client of Oxymed Pty Ltd, who suffered from extensive multiple sclerosis and had a history of epileptic seizures, was found unconscious in a single-person hyperbaric chamber. After being taken to hospital and placed on life support, the client did not recover and died later that week.

The Court found several significant failures by the company and clinical director of the company, Malcom Hooper, including:

• not having an adequate system in place for identifying and assessing the risks to each person receiving hyperbaric oxygen therapy;
• not developing a comprehensive plan to eliminate or reduce those risks;
• insufficient supervision of people receiving treatment; and
• not keeping staff updated with training and instruction on administering first aid.

Oxymed Pty Ltd and Mr Hooper were both found guilty of breaching sections 26 of the Occupational Health and Safety Act 2004 (Vic). Mr Hooper was also charged and pleaded guilty to failing to notify WorkSafe Victoria of the incident and failing to preserve the incident site, in breach of sections 38 and 39 of the Act.

Oxymed Pty Ltd was fined $550,000 and Mr Hooper was fined $176,750.

The judgement highlights the importance of the requirement to ensure proper training and supervision of your staff in safe systems of work, including emergency response and first aid. The courts will also not countenance a failure to report serious incidents to the regulator.