Citation: SafeWork NSW v BSA Advanced Property Solutions (Fire) Pty Ltd [2022] NSWDC 634
Court: District Court of New South Wales
Date: 16 December 2022
Judge: Russell SC DCJ
Background
BSA Advanced Property Solutions (Fire) Pty Ltd ("BSA Fire") was contracted to install a fire suppression system, including fire hydrant and sprinkler infrastructure, for a 32-storey high-rise construction project in New South Wales. On 29 November 2019, a worker employed by BSA Fire as site supervisor, Michael Murphy, was loosening a coupling connecting a test cap to a high-rise supply line pipe. The pipe was supposed to be unpressurised at that stage of the project.
Unknown to those on site, the pipe had become pressurised with air. No pressure gauge or pressure-release valve had been fitted to the fire hydrant circuit or the test cap. When Mr Murphy loosened the coupling, the sudden release of pressurised air ejected the test cap from the end of the pipe with considerable force, striking Mr Murphy in the head and causing fatal injuries.
SafeWork NSW prosecuted BSA Fire for failing to comply with its work health and safety duty under the Work Health and Safety Act 2011 (NSW). The charge exposed three workers (Mr Murphy, Mr Christopher Rigby and Mr Brendan Burke) to a risk of death or serious injury. BSA Fire pleaded guilty to the offence.
Legal Issues
- What was the appropriate level of objective seriousness for the offence under s 32 of the Work Health and Safety Act 2011 (NSW)?
- What weight should be given to mitigating factors, including a guilty plea and co-operation with investigators?
- What fine should be imposed, having regard to the maximum penalty, general and specific deterrence, and the defendant's capacity to pay?
- What costs order was appropriate?
Decision
The court assessed the objective seriousness of the offence as falling in the mid-range. Three workers were exposed to the risk, and one died. BSA Fire had failed on multiple fronts: it did not fit the system with a pressure-release valve or pressure gauge, did not develop and enforce an adequate Safe Work Method Statement (a written document identifying hazards and control measures, commonly known as a SWMS), and did not ensure workers received adequate training and instruction. The court found that each of these failures was reasonably practicable to address.
On mitigating factors, the court recognised BSA Fire's guilty plea, entered at an early stage, and its consistent co-operation with SafeWork NSW throughout the investigation. The court noted there were no prior convictions. These matters warranted a 25% discount on the fine. On the other side of the ledger, the court identified as an aggravating factor that the failure exposed multiple workers to risk and resulted in an actual death.
The court set the appropriate fine at $600,000 before discount, reflecting the mid-range objective seriousness, the fatal outcome, and the need for both general and specific deterrence. After applying the 25% reduction for the early guilty plea, the fine was fixed at $450,000. Neither party raised capacity to pay as an issue. Under s 122(2) of the Fines Act 1996 (NSW), 50% of the fine was directed to be paid to the prosecutor, SafeWork NSW.
Orders Made
- BSA Advanced Property Solutions (Fire) Pty Ltd convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW)
- Fine of $450,000 imposed (reduced from $600,000 by 25% for early guilty plea)
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor
- BSA Advanced Property Solutions (Fire) Pty Ltd to pay the prosecutor's costs
Key Takeaways
- A conviction under s 32 of the Work Health and Safety Act 2011 (NSW) can attract a fine of up to $1,500,000 for a corporation, and the District Court assessed this offence at mid-range seriousness given the multiple workers exposed and the fatal outcome.
- The court identified three distinct categories of failure contributing to the offending: the absence of physical safeguards on the pipe system (pressure gauge and release valve), the absence of an adequate SWMS, and the failure to train workers in hazard identification and control procedures.
- Where a defendant enters an early guilty plea and co-operates fully with the prosecutor, a 25% sentencing discount may be available under ss 21A and 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Under s 122(2) of the Fines Act 1996 (NSW), the court has power to direct that a portion of a fine be paid to the prosecuting authority, and exercised that power here by directing 50% to SafeWork NSW.
- General deterrence remains a significant sentencing consideration in workplace fatality prosecutions, and a substantial fine may be warranted even where specific mitigating factors are present, as confirmed by the Court of Criminal Appeal in Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432