This case began with experimental work intended to produce biogas. A doctor was conducting experiments that could generate hydrogen sulphide, a highly toxic gas. The work was initially performed outdoors, but it was later moved into a portable laboratory measuring about three metres by three metres. The equipment and experimental setup also changed over time.[1]

The company employed scientists, but the officer responsible for its day-to-day administration and health and safety did not have a background in biochemistry or microbiology. The organisation assumed its chief scientist had completed a risk assessment for the work. The court record established that no risk assessment had been conducted.[1]

On 14 July 2026, the District Court of NSW convicted the company’s sole director, following his guilty plea, for failing to exercise due diligence as an officer. He was fined $195,500. The case is not about requiring an officer to personally understand every scientific calculation. It is about requiring the officer to verify that hazardous work has been assessed, that suitable controls are operating and that warnings can stop the work before someone is exposed to a risk of death or serious injury.[1]

The expert did not remove the officer’s duty

The experiments had initially been conducted outdoors, where minimal or no hydrogen sulphide was detected. They were later moved into a portable laboratory of about three metres by three metres, and the experimental setup changed over time.[1]

That change mattered. A hazard that was tolerable in a well-ventilated outdoor setting could not simply be assumed to remain tolerable in a small enclosure. Unfamiliar or changing work creates uncertainty, and uncertainty increases the need to revisit the risk assessment when equipment, scale, materials or operating conditions change.

The judgment records that the sole director was responsible for day-to-day administration and health and safety. It also records that the company and the director had received information about hydrogen sulphide risks from at least 2019, including a safety sheet, and that scientists later raised concerns about the experiment and requested proper equipment and personal protective equipment.[1]

The due-diligence question was not whether the officer could personally calculate the chemistry. It was whether the organisation had a reliable process for converting specialist knowledge into a safe operating decision.

Risk signals must change the operating state

The court’s agreed facts describe repeated warning signals. In late February 2022, a measurement outside the laboratory showed about 100 parts per million of hydrogen sulphide and the doctor experienced symptoms. In March, measurements inside gas collection bags exceeded 5,000 parts per million. Concerns about unsafe conditions, leaking equipment and the need for proper controls were raised, yet measurements continued until April.[1]

Acting SafeWork Commissioner Petrina Casey put the danger plainly:

“Hydrogen sulphide gas is highly toxic, flammable and colourless. Breathing in high levels of hydrogen sulphide gas can cause loss of consciousness after one or two breaths and potential loss of life within minutes.”[2]

She also emphasised that the necessary safeguards were not unknown or technically obscure:

“Risk control measures for working with hazardous chemicals are well known. Without controls such as proper ventilation when working in confined spaces, chemical exposure can cause serious injury, illness or death.”[2]

SafeWork NSW’s hydrogen sulphide alert says high-level exposure can kill within minutes. It advises workplaces not to rely on smell, to use gas detection and ventilation, to ensure a competent person conducts a risk assessment, and to check that controls are in place.[4]

A warning is not a control. A request for equipment is not a control. An email about a hazard is not a control.

They become protective only when the system turns them into a decision: stop the work, isolate the hazard, install the required safeguards, verify performance and authorise restart.

Due diligence is a verification system

Section 27 of the Work Health and Safety Act 2011 (NSW) requires officers to exercise due diligence. The statutory elements include keeping WHS knowledge current, understanding operations and associated hazards, ensuring appropriate resources and processes are available and used, ensuring processes exist for receiving and responding to incident and hazard information, and verifying that those resources and processes are actually provided and used.[3]

Verification is the part that is easiest to dilute.

A policy can allocate responsibility. A procedure can require an assessment. A competent person can be appointed. None of those facts alone proves that the assessment occurred, covered the actual work, identified the material hazard or led to controls that were installed and working.

This does not mean officers should second-guess every technical conclusion. It means they should be able to test the integrity of the process around that conclusion.

What officers should require before unfamiliar hazardous work begins

The following are practical governance questions, not a statement that every workplace must use the same documents or approval steps:

  • Who is the named owner of the risk assessment, and who is the competent technical reviewer?
  • What change in equipment, scale, location or method would trigger reassessment?
  • Which controls must be in place before work starts, and what are their performance requirements?
  • What measurable condition requires the work to stop automatically?
  • How are concerns recorded, escalated, closed and communicated to affected workers?
  • What independent evidence confirms the controls were installed, tested and remain effective?

For higher-consequence work, an officer should expect more than a completed form. The assurance should connect the hazard to the control, the control to a performance standard, and the performance standard to evidence from the real operating environment.

When the expert raises the concern

Specialist workers often occupy an uncomfortable position. They may understand the technical hazard while lacking authority over budgets, equipment, production priorities or permission to stop the work.

That is why an expert’s warning must be treated as a governance input, not merely a technical disagreement to be managed within the team. The officer’s role is to ensure that credible concerns reach a decision-maker, that interim exposure is controlled and that restart does not depend on the same assumptions that allowed the concern to persist.

The Fusarelli decision is case-specific, follows a guilty plea and is a first-instance sentencing decision. SafeWork NSW’s 17 July release also notes the defendant’s right to appeal the sentence.[2] It should not be used as a shortcut for judging other officers or organisations.

Its wider lesson is still clear.

Delegation can assign work. It cannot replace verification.

So when a board or executive team is told that a competent person owns the risk assessment, the next question should be:

What evidence shows the assessment happened, the controls match the actual work and a warning would change the operating state before someone is harmed?

References

  1. District Court of New South Wales, SafeWork NSW v Fusarelli [2026] NSWDC 244, decision and orders dated 14 July 2026. View the decision. Accessed 14 August 2026.
  2. SafeWork NSW, “Company director fined $195,500 after doctor exposed to hydrogen sulphide gas”, 17 July 2026. View the release. Accessed 14 August 2026.
  3. NSW legislation, Work Health and Safety Act 2011 No 10, sections 14, 19 and 27, current in-force version. View the Act. Accessed 14 August 2026.
  4. SafeWork NSW, “Exposure of workers to hydrogen sulphide gas safety alert”, 12 June 2018. View the safety alert. Accessed 14 August 2026.