SafeWork NSW v BSA Advanced Property Solutions (Fire) Pty Ltd

[2022] NSWDC 634

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v BSA Advanced Property Solutions (Fire) Pty Ltd [2022] NSWDC 634

Hearing dates:

12 December 2022

Date of orders:

16 December 2022

Decision date:

16 December 2022

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   BSA Advanced Property Solutions (Fire) Pty Ltd is convicted.

(2)   The appropriate fine is $600,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order BSA Advanced Property Solutions (Fire) Pty Ltd to pay a fine of $450,000.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5)   Order BSA Advanced Property Solutions (Fire) Pty Ltd to pay the prosecutor’s costs.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty

COSTS – prosecution costs

OTHER – defendant conducted a business or undertaking involving the installation of fire hydrant and sprinkler systems – sudden release of pressurised air caused explosion that ejected a test cap off the end of a pipe – test cap struck worker causing him fatal head injuries – failure to fit system with a means to release pressure or identify when the system is pressurised ­– failure to implement and enforce an adequate safe work method statement – failure to provide workers with training, information and instruction

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19, 32

Cases Cited:

Baumer v R [1988] HCA 67; (1988) 166 CLR 51

Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338

BW v R [2011] NSWCCA 176

Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96

R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566

R v Wilkinson (No. 5) [2009] NSWSC 432

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:

SafeWork NSW Code of Practice, Managing the Risks of Plant in the Workplace, August 2019

Victaulic, I-100 Field Installation Handbook

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
BSA Advanced Property Solutions (Fire) Pty Ltd (Defendant)

Representation:

Counsel:
J Agius SC (Prosecutor)
A Moses SC with M Shume (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Seyfarth Shaw (Defendant)

File Number(s):

2021/300048

Judgment

1. BSA Advanced Property Solutions (Fire) Pty Ltd (BSA Fire) was contracted to install a fire suppression system for a high-rise construction project. On 29 November 2019 a worker, Mr Michael Murphy, was loosening a coupling which connected a test cap to a high-rise supply line pipe. There was no pressure gauge or release valve fitted to the fire hydrant circuit or the test cap. A sudden release of pressurised air from the pipe caused the test cap on the end of the pipe to be ejected with considerable force. The test cap struck Mr Murphy resulting in fatal head injuries.

2. BSA Fire has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the Act) it failed to comply with that duty and thereby exposed Mr Michael Murphy, Mr Christopher Rigby and Mr Brendan Burke to a risk of death or serious injury contrary to s 32 of the Act.

3. The maximum penalty for the offence is a fine of $1,500,000.

The Risk

4. The risk described in par 13 of the Amended Summons is as follows:

“The risk was of workers, including Mr Murphy, Mr Rigby and Mr Burke, suffering serious injury or death as a result of being struck by components of the fire hydrant and sprinkler system due to the uncontrolled release of hydraulic/pneumatic energy while undertaking the Task.”

Reasonably Practicable Measures

5. Paragraph 14 of the Amended Summons pleads particulars of the defendant’s failure to comply with the duty under s 19(1) of the Act as follows:

“The defendant failed to ensure, so far as is reasonably practicable, the health and safety of Mr Murphy, Mr Rigby and Mr Burke, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate (or alternatively minimise, if it was not reasonably practicable to eliminate) the risk:

a. confirming that all fire hydrant/sprinkler systems which have potential to be pressurised, either at completion of construction or at any stage during construction, be fitted with:

i. a means to release pressure from the system or circuit. in particular an open ended valve; and/or

ii. a means to identify whether the system or circuit is pressurised, in particular a pressure gauge.

b. develop, implement and enforce an adequate Safe Work Method Statement ('SWMS') for the installation of fire hydrant/sprinkler systems which identified the hazard of uncontrolled release of hydraulic/pneumatic energy and the measures required to control the associated risks, including:

i. to assume that all capped or closed pipe systems are pressurised until confirmed otherwise;

ii. prior to undertaking work on a pipe system, including any adjustment of couplings, confirm the system is isolated from all potential energy sources and lock-out tag-out procedures are implemented, any stored energy is released via incorporated valves;

iii. where it cannot be confirmed whether pipe systems are pressurised via a pressure gauge, or where potential pressure cannot be released via a valve, stop work, inform the Supervisor and Project Manager and await instruction;

c. certifying that workers were provided with adequate training, information and instruction in relation to the content of the SWMS (referred to above in 14 (b) i to iii).”

Background

6. The parties presented an Agreed Statement of Facts and this material is summarised below.

7. BSA Fire was a company that specialised in commercial fire suppression systems, including the construction and maintenance of fire service plant, such as fire hydrants and sprinklers.

8. BSA Fire was a wholly owned subsidiary of BSA Limited, a publicly listed company which provided a range of technical services through its subsidiaries. BSA Fire was part of a group of subsidiaries that operated under the banner of “BSA Build”.

9. As at 11 September 2020 BSA Fire had 123 employees.

10. Mr Michael Murphy was employed by BSA Fire as a “full-time registered sprinkler fitter” since 30 August 2018. At the time of the incident Mr Murphy was BSA Fire’s site supervisor for the site.

11. BSA Fire also employed:

1. Mr Christopher Rigby as an “apprentice sprinkler fitter”.

2. Mr Brendan Burke as a “full-time sprinkler fitter”.

12. Mr Michael Joyce was BSA Build’s Project Manager for the site.

The Site

13. Grocon Constructors (NSW) Pty Ltd (Grocon) contracted BSA Fire to install a fire suppression system for a 32-storey high-rise construction (the Building). The agreed scope of work included the design and construction of the fire services for the Building, including the fire hydrant and sprinkler system, and the temporary hydrant services during the construction.

14. BSA Fire subcontracted the design of the fire hydrant and sprinkler system to RAN Fire Protection Engineering P.C. (RAN). BSA Fire liaised with RAN regarding any changes or modifications to the design and RAN would reissue the relevant technical drawings.

15. BSA Fire also subcontracted part of the works to Your Fire Pty Ltd (YF), including:

1. Supplying and installing the fire sprinkler pipework.

2. Installing riser pipework, valve sets and hydrant pipes.

16. Under the design, water would be supplied to hydrants and sprinklers throughout the Building using three large diesel pumps located in the pump room on the ground floor.

17. From the pump room, water would be pumped around the Building to three rising main pipes: the low-rise, mid-rise and high-rise pipes. At the time of the incident the high-rise supply line was supposed to be empty (ie not pressurised). It was to be pressurised on completion of the project.

18. Most of the hydrant system components were manufactured by Victaulic. Other plumbing supplies were manufactured and/or supplied by AIIFire Supplies Pty Ltd (AIIFire).

Provision of Temporary Hydrant Services

19. During the construction of the Building, BSA Fire was to provide temporary fire hydrant services in accordance with the Building Code of Australia.

20. To fulfil this, BSA Fire pressurised the mid-rise line with water using a large diesel pump (Relay Pump), supplemented by a smaller jacking pump (Jacking Pump) that automatically maintained water pressure in the line.

21. The provision of temporary fire hydrant services was not reflected in the technical drawings and/or schematics for the fire suppression system. The relevant changes to the fire hydrant system pipework were managed informally on site by BSA Fire technicians.

22. The high-rise supply line remained disconnected from the water supply until about a week before the incident. In part this was because the only active diesel pump, which was providing the temporary water supply to the mid­rise line, was situated outside the pump room while the pump room was being constructed.

23. On 23 November 2019 the Relay Pump and Jacking Pump were moved into the pump room.

24. On 26 November 2019 Mr Jackson Smith, commissioning technician, and Mr Robert Graves, apprentice, from Prime Pumps Pty Ltd attended the Building to commission the Relay Pump. This involved connecting the Relay Pump to the fire hydrant system pipework to provide water for the temporary fire hydrant services and turning on and running the Relay Pump.

25. Mr Smith was unable to run the Relay Pump long enough to complete the commissioning process because the waste line was not yet connected. Running the Relay Pump was less important under the circumstances because it had already been in use when it was outside the pump room. Additionally, Mr Smith was planning to perform a “flow test” on the Relay Pump when he returned to the site to commission the other pumps in the pump room.

26. On 27 November 2019 Mr Rigby heard the Relay Pump running in the pump room and believed that Mr Murphy had turned it on.

27. The water was prevented from entering the high-rise supply line by a Victaulic 705 Butterfly Valve (Stop Valve) installed by BSA Fire approximately two or three months prior to the incident, which was located near the ceiling of the pump room.

28. The Stop Valve was a quarter-turn rotational motion valve used to stop, regulate and start the flow of water into the fire hydrant system pipework. The Stop Valve was fitted with an external circular handle which, when rotated, caused an internal round metal disc to turn inside the valve housing.

29. A 90-degree rotation of the handle provided a complete closure or opening of the valve. The flow was stopped by the valve disc sealing against a seat on the inside diameter periphery of the valve body.

30. The Stop Valve was fitted with an external orange indicator, which rotated in unison with the valve disc, to indicate whether the valve was open, closed or partly open.

31. If the valve disc was not fully closed, or if foreign material had entered the valve which caused the valve disc not to be properly sealed against the seat, then water could flow through the Stop Valve and into the fire hydrant system pipework. Any leaks in the Stop Valve would result in a drop of pressure behind the Stop Valve, causing the Jacking Pump to automatically operate to maintain a pre-set pressure level.

Capping of the High-Rise Line

32. Approximately two weeks before the incident, a test cap (also referred to as an end cap) with a 25 mm plug (Test Cap) was fitted by YF to the high-rise supply line on level 21.

33. BSA Fire had instructed YF not to leave open any ends of the pipes because rubbish could enter open pipes and potentially block them.

34. The Test Cap was a temporary installation not included in the design of the fire suppression system. It was implemented by BSA Fire during the construction of the high-rise supply line and managed informally on site.

35. BSA Fire’s commissioning plan for the Building noted the possibility of blockages in the pipework.

36. The Test Cap was manufactured by AIIFire. BSA Fire ordered test caps in bulk, and they were not issued with a unique identifying number or code.

37. Open-ended valves and pressure gauges could be installed to the Test Cap.

38. The Test Cap did not have a pressure gauge installed so there was no way to visually ascertain whether the high-rise supply line pipe on level 21 was pressurised. There was also no valve fitted to the high-rise supply line circuit, including the Test Cap. This meant it was not possible to safely release any pressure in the high-rise supply line prior to removing the Test Cap.

The Incident

39. On 29 November 2019 Mr Murphy, Mr Rigby and Mr Burke commenced work at approximately 6.30am. They briefly discussed the work to be undertaken that day while Mr Murphy was completing the Daily Pre-Start Checklist.

40. Mr Murphy, Mr Rigby and Mr Burke proposed to install a pressure reduction valve on the mid-rise line, which would then connect the mid-rise line to the high-rise supply line on level 21 of the Building.

41. Prior to commencing this work, Mr Murphy, Mr Rigby and Mr Burke looked at the Stop Valve in the pump room to visually check that the high-rise supply line was not pressurised.

42. Mr Rigby pointed out to Mr Murphy that the orange indicator on the Stop Valve was not fully in the position that it should be if the valve was closed but was “very slightly off” by about a millimetre. Despite this indication that the valve was possibly not completely closed, Mr Murphy, Mr Rigby and Mr Burke all agreed that the Stop Valve was closed.

43. Mr Burke and Mr Rigby then proceeded to the stairwell known as “Fire Stairs 1” on level 21 of the Building. Mr Murphy went to isolate and drain the water from the mid-rise line at an isolation point a few floors below.

44. Mr Murphy returned to level 21 and advised Mr Burke and Mr Rigby that after isolating and draining the system, he opened a valve on the mid-rise line in the room and there was a release of air.

45. At about 10.00am Mr Murphy, Mr Rigby and Mr Burke were working on the high-rise supply line on level 21 in Fire Stairs 1. Mr Burke was kneeling next to the high-rise line pipes affixing brackets to the wall. Mr Rigby and Mr Murphy had a brief discussion outside the stairwell before proceeding back inside.

46. Mr Murphy used a socket wrench power tool, known as a “rattle gun”, to loosen the bolts on the coupling that was securing the Test Cap to the end of the high-rise supply line.

47. The Test Cap “budged up” before a “massive bang” was heard from the pipe. This was followed by a rush of air coming from the end of the high-rise supply line for about 10 seconds. After the air stopped water started flowing from the end of the high-rise supply line pipe.

48. The explosive release of pressurised air caused the Test Cap to be ejected from the end of the pipe at considerable force. The Test Cap struck Mr Murphy causing him to sustain significant traumatic head injuries.

49. The explosive force from the release of pressurised air also caused Mr Burke to be blown over.

50. At 11.21am Mr Murphy was taken by ambulance to St Vincent's Hospital in Darlinghurst.

51. At 11.48am Mr Murphy died from his injuries.

Systems of Work Prior to the Incident

52. Prior to the incident BSA Fire did not have a Safe Work Method Statement (SWMS) for the installation of fire hydrant/sprinkler systems which identified the hazard of the uncontrolled release of hydraulic/pneumatic energy or the measures required to control the associated risks, including:

1. To assume that all capped or closed pipe systems are pressurised until confirmed otherwise.

2. Prior to undertaking work on a pipe system, including any adjustment of couplings, confirm that the system is isolated from all potential energy sources and lock-out tag-out procedures are implemented, and that any stored energy is released via incorporated valves.

3. Where it cannot be confirmed whether pipe systems are pressurised via a pressure gauge, or where potential pressure cannot be released via a valve, stop work, inform the Supervisor and Project Manager and await instruction.

53. Prior to the incident BSA Fire had work procedures that included:

1. That all workers were to be experienced and qualified fire sprinkler technicians.

2. A SWMS on Installation of Wet and Dry Fire Equipment (Revision No 4).

3. An informal step-by-step system prior to carrying out work on pressurised systems that included:

1. Checking the system has been isolated.

2. Turn the valve off.

3. Drain the line.

4. Check that the gauge reads zero.

Workers Were Not Able to Identify Pressurised Pipes

54. Prior to the incident BSA Fire failed to ensure that workers were able to identify pressurised fire hydrant system pipework circuits during the construction of the fire suppression system for the Building and whilst providing temporary hydrant services.

55. On the day of the incident BSA Fire workers undertaking the tasks on level 21, including Mr Murphy, had erroneously assumed that because the Stop Valve indicated closed, the high-rise supply line was not pressurised.

56. There was no provision made in BSA Fire’s systems of work for consideration of the potential accidental or inadvertent pressurisation of the fire hydrant system pipework circuits, whether through human error (such as accidental cross-connection or unknowingly opening and closing the Stop Valve) or mechanical fault.

57. BSA Fire’s systems of work did not require:

1. The fitting of valves and/or pressure gauges to fire hydrant circuits that were not open systems at any stage during construction.

2. Where a circuit did not incorporate a pressure gauge and valves, using only a Test Cap with a valve and/or a pressure gauge fitted to the circuit, that enabled workers to verify that the circuit was not pressurised and, if it was pressurised, to safely release the pressure in the system.

58. The fitting of a pressure gauge to the Test Cap would have provided workers with the ability to visually ascertain whether there was any pressure, and the extent of any such pressure, in the line.

59. A valve would have allowed the workers to open the line in a safe and controlled manner to check if there was any residual water or air pressure in the line and safely release that pressure.

60. The approximate cost to install test caps with a pressure gauge and release valve for every test cap at the Building was $172 per installation (including labour). The total cost was $1,032 for installation throughout the Building.

Guidance Material

61. The SafeWork NSW Code of Practice Managing the Risks of Plant in the Workplace dated August 2019 (SafeWork Guide) has a general warning about the dangers of stored energy sources. At Section 4.5 it relevantly provided a procedure for isolating energy sources, including:

“– identification of all energy sources and other hazards

– isolate all energy sources

– control or de-energise all stored energy

– lock out all isolation points”

62. Further, the SafeWork Guide stated:

“In order for the isolation procedure to be effective, you should identify all energy sources likely to activate the plant or part of it and isolate …”

63. The Victaulic I-100 Field Installation Handbook (Handbook) explained how to install and use Victaulic products, including couplings and butterfly valves.

63. The Handbook contains the following warning about pressurised pipes:

“Always depressurize and drain the piping system before attempting to install, remove, adjust, or maintain the coupling/end cap, any end cap connections, and any other Victaulic piping products.”

65. The Handbook also contains a “Danger” notice to customers, which in effect stated:

1. When directly connecting an end cap to a butterfly valve, use only a tapped end cap for pressure relief.

2. Pressure must be vented through the tap before attempting to remove the cap.

3. Failure to follow these instructions could result in death or serious personal injury.

66. In the paragraph immediately preceding the “Danger” notice it says:

“When directly connecting an end cap to a butterfly valve, use only a tapped end cap for pressure relief. If the butterfly valve is opened then closed unknowingly while the end cap is attached, the space between the disc and end cap will be filled and pressured. A sudden release of energy can occur if the end cap is removed while the space behind it is pressured. PRESSURE MUST BE VENTED THROUGH THE TAP BEFORE ATTEMPTING TO REMOVE THE CAP.”

67. On 20 November 2019 Mr Michael Joyce gave a toolbox consultation attended by Mr Murphy, Mr Rigby and Mr Burke, at which the process for isolation and drainage of live pipe work was discussed.

68. A BSA Fire induction document titled “Absolutes” included a page titled “Energy Isolation” referring to the need to isolate all energy sources and “double block and bleed”.

Systems of Work Following the Incident

69. SafeWork NSW attended the site on 29 November 2019 and issued a Prohibition Notice to cease work on charged pipes.

70. In response to the Prohibition Notice BSA Fire undertook the following actions:

1. Updated their SMWS on Installation of Wet and Dry Fire Equipment (Revision No 6) to include information in relation to installing brackets, pipework and commissioning. In particular the SWMS provided:

1. Blank caps be eliminated as a component of pipework. Only enclose an array of pipework with a valve and gauge arrangement.

2. Couplings are not to be adjusted under any circumstance while system is under pressure or has residual water.

3. Assume all pipes are pressurised (live) until confirmed otherwise. Where it cannot be confirmed, stop work and contact the Supervisor and Project Manager.

4. Do not work on rising mains pipes at the top of the stack unless a gauge and valve are fitted to the pipe.

5. Do not work on horizontal pipe work with end caps unless a gauge and valve are fitted to the pipe.

6. Isolate valve, complete drain down and check that gauge is at zero.

7. Carry out checks to confirm system being worked on has been isolated and drained.

8. Supervisor to advise that work can proceed based on confirmation that the system has been isolated and drained accordingly.

2. Updated the Daily Pre-Start Form to instruct workers that are working on “rising mains pipes at the top of the stack” to:

1. Assume that all pipes are pressurised (including any pipes not intended to be pressurised) until it is confirmed that the pipe is not pressurised.

2. Identify and confirm a gauge and valve are fitted to a pipe before commencing any work on that pipe. If not, workers are to contact their supervisor.

71. On 4 December 2019 BSA Fire conducted a toolbox talk with all relevant workers to communicate the revised processes and procedures.

72. On 4 December 2019 SafeWork NSW issued an Improvement Notice in relation to the fire suppression system on site which was not in conformity the drawings and/or schematics as designed.

73. In response BSA Fire undertook a review of the fire suppression system in its entirety to verify that all parts were installed and operating as per the manufacturer’s specifications and that the valves installed within the system were performing as intended.

Evidence for the Defendant

Affidavit of Mr Kynan Joel Ford

74. Mr Kynan Joel Ford affirmed an affidavit on 28 November 2022. Mr Ford is the General Manager of Health, Safety and Environment for BSA Fire.

75. Mr Ford is responsible for reviewing and monitoring BSA Group’s work health and safety management system (WHSMS), including across BSA Fire.

Company Background

76. BSA Fire was first registered as Triple ‘M’ Mechanical Services (NSW) Pty Ltd on 4 July 2002. The company’s name was changed to Triple ‘M’ Fire Pty Ltd on 15 April 2003 and ultimately to BSA Advanced Property Solutions (Fire) Pty Ltd on 19 April 2020.

77. BSA Fire has no prior convictions for any breach of work health and safety laws in New South Wales.

78. Mr Ford noted that BSA Fire is committed to continual engagement with the communities in which it operated. This included providing local training and employment opportunities, indigenous and community support through sponsorships and charity fundraisers, BSA Group’s active involvement in charity organisations and BSA Fire’s financial support to various sporting clubs and organisations.

BSA Fire’s System at the Time of the Incident

79. BSA Fire had a system in place that included a SWMS for the installation of wet and dry fire equipment at the Building.

80. All workers undertaking the relevant work were required to be qualified and experienced sprinkler fitters.

81. Mr Murphy held a Tradesperson Certificate as a Water Plumber (Fire Systems Only), first issued in May 2001.

82. Mr Burke held a Supervisors Certificate licence as a Water Plumber (Fire Sprinkler Systems Only), first issued in July 2007.

83. Mr Rigby completed a Certificate III in Fire Protection in September 2017 and held a contractor licence as a Water Plumber (Fire Protection Systems Only).

84. BSA Fire’s system for carrying out work on pressurised pipework required workers to:

1. Check the system was isolated.

2. Shut off the relevant valve.

3. Drain the line.

4. Check that the pressure gauge reads zero.

85. BSA Fire workers completed daily pre-starts consisting of 10 questions, including a question on required permits and isolations.

86. On 20 November 2019 workers engaged by BSA Fire at the site, including Mr Murphy, Mr Burke and Mr Rigby, participated in a toolbox talk which addressed isolation and drainage prior to carrying out works on live pipe work and included instructions that couplings are not to be adjusted under any circumstance while the system is under pressure or has residual water.

87. BSA Fire and its workers, as part of the BSA Group, were subject to the “BSA Absolutes”, which were non-negotiable minimum safe work expectations based on areas common across BSA’s business and specific to major hazards. BSA Fire, as part of BSA’s Safe Work Month, held a National Stop For Safety Day on 30 October 2019 in which the BSA Absolutes were communicated to all workers.

Improvements to BSA Fire’s System Following the Incident

88. It was Mr Ford’s understanding that on 29 November 2019 following the incident, SafeWork NSW issued a Prohibition Notice to BSA Fire requiring that work cease on charged pipes. The Prohibition Notice required BSA Fire to:

1. Review, and as necessary revise, control measures in place for performing work on charged pipes.

2. Document revised controls in the SWMS or the procedure related to the work being conducted at the time of incident.

3. Provide a copy of the documented revised controls and evidence of their implementation.

89. It was Mr Ford’s understanding that on 3 December 2019, BSA Fire provided a response to the Prohibition Notice setting out the control measures in place at the time of the incident, revisions to be made and actions to implement those revisions.

90. On 4 December 2019 a toolbox talk was held to communicate to all relevant workers the improvements and provide a refresh on control measures following the incident.

91. On 5 December 2019 BSA Fire introduced the revised SWMS as set out in the response to the Prohibition Notice.

92. A number of further toolbox talks were conducted in the months following the incident to review control measures and consult with workers regarding the improvements implemented following the incident.

BSA Fire’s Health Safety and Environment System and Initiatives

93. BSA Fire fully integrated a WHSMS into the company’s operations through its inclusion in BSA Fire’s Integrated Management System (IMS). The IMS was the name given to the structure of the accredited health, safety, environment and quality system of work.

94. The BSA Fire Health, Safety and Environment (HSE) Policy applied to all personnel, contractors and joint ventures engaged in activities under BSA Fire’s operational control and was designed to encourage incident prevention, quality reporting and safe work practices both individually and as a collective.

95. BSA Fire elected to be certified against ISO 45001:2018, which was a higher standard than the previous standard against which BSA Fire was benchmarked, namely AS/NZS 4801.

96. BSA Fire was awarded accreditation by the Federal Safety Commissioner under the Australian Government Building and Construction WHS Accreditation Scheme, which required bi-annual audits of BSA Fire’s system, a report from BSA Fire that included data on work health and safety performance indicators, and reports of any fatalities, lost time injuries, medically treated injuries, and dangerous occurrences.

97. Mr Ford annexed an example of a Group Health and Safety Strategy that BSA Fire published each financial year, which tracked work health and safety and set out initiatives to improve work health and safety within BSA Group.

98. BSA Fire also conducted a Health, Safety and Environment Steering Committee which met quarterly to track work health and safety performance, review incidents or high-potential incidents and discuss general business related to work health and safety.

99. BSA Fire implemented a document hub available to all BSA Fire workers (including employees and contractors) which provided a central document management system. This supports the IMS and hosts all of BSA Fire’s controlled documents, including work health and safety policies, standards, procedures and records, as well as operational documents such as the SWMSs, risk assessments and safety alerts.

100. BSA Fire held an annual “Stop For Safety” day each October to remind employees and contractors of the importance of work health and safety.

101. BSA Fire also established a health and wellness hub, an online program managed and delivered through Health at Work that provides BSA Fire workers with resources to assist with their physical and mental wellbeing.

Early Guilty Plea

102. On 12 September 2022 the prosecutor sought and was granted leave to file an Amended Summons and a plea of guilty was entered to the Amended Summons on behalf of BSA Fire.

Affidavit of Mr Mark Dunn

103. Mr Mark Dunn affirmed an affidavit on 28 November 2022. Mr Dunn is the Executive General Manager of BSA Fire within the BSA Group operated by BSA Limited. He has held this position since November 2019.

Statement of Contrition

104. Mr Dunn offered his condolences to Mr Murphy’s family and expressed regret personally and on behalf of BSA Fire that the incident occurred and for the impact the loss of Mr Murphy has had on Mr Murphy’s family, friends, colleagues, and the broader community.

105. On behalf of BSA Fire, Mr Dunn also accepted, and apologised for, its failure to comply with its duty to ensure so far as is reasonably practicable the health and safety of Mr Murphy, Mr Rigby and Mr Burke on 29 November 2019, which as a consequence exposed them to a risk of death or serious injury and caused Mr Murphy to suffer fatal injuries.

Support Provided to Mr Murphy’s Family

106. Mr Dunn outlined the various communication he, Mr Rod Sekulich (the Executive General Manager of BSA Fire at the time) and Mr Nicholas Yates (BSA Fire’s Managing Director and CEO at the time) had with Mr Murphy’s wife and son, and Mr Murphy’s uncle Mr Shayne Ivory, in November and December 2019 to discuss how BSA Fire could be of assistance.

107. On 9 December 2019 Mr Dunn attended Mr Murphy’s funeral service with Mr Yates and other BSA Fire representatives. BSA Fire paid the expenses associated with Mr Murphy’s funeral service totalling $8,515.

108. In December 2019 and January 2020 Mr Dunn continued to contact Mr Ivory and Mrs Murphy to check in and arrange assistance to them for help completing forms for insurance claims. BSA Fire paid $7,500 to Mrs Murphy to assist with her expenses while she awaited the outcomes of these claims.

109. Mr Dunn contacted Mrs Murphy in November 2020 and in November 2021 to recognise the anniversary of Mr Murphy’s death.

110. BSA Fire cooperated with its workers compensation insurer for Mr Murphy’s dependants to receive the benefit of worker’s compensation payments totalling $816,850.

Support Provided to Workers

111. Counselling was made available to the immediately impacted workers through BSA Fire’s Employee Assistance Program (EAP) in the days following the incident. Arrangements were also made for the EAP to be provided at the incident site.

112. Near the first and second anniversary of the incident BSA Fire again offered support to impacted workers.

Cooperation with SafeWork NSW

113. BSA Fire assisted SafeWork NSW in its investigation following the incident, including providing timely and complete responses to the statutory notices issued to BSA Fire. SafeWork NSW confirmed compliance with the Prohibition Notice issued to BSA Fire following the incident. SafeWork NSW sought clarification regarding some of the documents provided in response to an Improvement Notice issued to BSA Fire but raised no issue regarding compliance.

Affidavit of Mr Matthew Rogers

114. Mr Matthew Rogers swore an affidavit on 28 November 2022. Mr Rogers is the General Manager of BSA Fire’s New South Wales projects within the BSA Group operated by BSA Limited. He has held this position since November 2021.

The Use of Blank End Caps in Dry Fire Hydrant Lines

115. At the time of the incident BSA Fire used blank end caps on fire hydrant lines not yet commissioned (ie not filled with water or under pressure) to prevent debris and rubbish being placed in the lines during the construction of fire hydrant services. Mr Rogers stated this was an industry-wide practice that changed following the incident. Blank ends caps are no longer used for this purpose.

Mr Murphy’s Funeral Service

116. Mr Rogers was asked whether he was willing to speak on behalf of BSA Fire at Mr Murphy’s funeral service. He agreed and spoke personally and on behalf of BSA Fire at Mr Murphy’s funeral service. Mr Rogers stated he was honoured to do so because of his long friendship of 20 years with Mr Murphy.

Support Following the Incident

117. Following the incident Mr Rogers received support and counselling from BSA Ltd due to the effect the incident had had on him. Mr Rogers stated that the level of support provided by BSA Fire and BSA Limited was excellent and made a difference to him and to his ability to offer support to impacted workers.

Consideration

118. I have had regard to the objects in s 3 of the Act and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Objective Seriousness of the Offence

119. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at pp 472, 485-6, 490-1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].

120. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].

121. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:

“The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.”

122. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson(No. 5) [2009] NSWSC 432 at [61].

123. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.

124. The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.

125. The Court of Criminal Appeal has examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading “Assessment of Risk” said:

“The sentencing judge commenced his consideration with the proposition that ‘greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely’. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors.”

126. Further at [42] his Honour continued:

“The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.”

127. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying:

“It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

128. My findings about the defendant’s level of culpability are based upon the following:

1. The risk of the uncontrolled release of energised in pipes containing water and air was well known to BSA Fire. Further, the Victaulic Handbook drew specific attention to such a risk. It said: “When directly connecting an end cap to a butterfly valve, use only a tapped end cap for pressure relief”.

2. The likelihood of the risk occurring was not insignificant, given the scale of the project in the Building and the number and complexity of trades and organisations involved in the project.

3. The potential consequences of the risk were death or serious injury.

4. There were quite simple steps available to eliminate or minimise the risk. BSA Fire changed its practices immediately after the incident.

5. There was only a minimal burden in the steps required to be implemented.

6. The death of Mr Murphy was caused by the breach of duty by BSA Fire. Two other workers were put at risk of serious injury.

7. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature’s view of the seriousness of the offence.

8. BSA Fire had a detailed and clear safety system. However, that system did not deal adequately with the risk created by the pressurised pipe and the use of an end cap with no gauge or valve.

129. I find that the level of culpability of BSA Fire is in the mid range.

Deterrence

130. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

131. The penalty must reflect the need for specific deterrence. BSA Fire is still conducting a business. Its operations involve the installation and maintenance of commercial fire suppression systems and the continuing engagement of workers in potentially high-risk industry.

Aggravating Factors

132. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

Mitigating Factors

133. BSA Fire has no previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

134. BSA Fire is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this. BSA Fire has been in business for approximately 20 years.

135. BSA Fire is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.

136. BSA Fire has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this incident occurred.

137. BSA Fire has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the death of Mr Murphy was caused by its actions.

138. BSA Fire entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give BSA Fire a 25% discount for an early plea.

139. BSA Fire gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

140. I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

141. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:

“First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to ‘the means’ of the defendant, pursuant to s 6 of the Fines Act 1996.”

142. There was no submission about capacity to pay, so this issue does not arise.

Costs

143. The parties have agreed to an order that the defendant is to pay the prosecutor’s costs.

Penalty

144. My orders are:

1. BSA Advanced Property Solutions (Fire) Pty Ltd is convicted.

2. The appropriate fine is $600,000 but that will be reduced by 25% to reflect the early plea of guilty.

3. Order BSA Advanced Property Solutions (Fire) Pty Ltd to pay a fine of $450,000.

4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

5. Order BSA Advanced Property Solutions (Fire) Pty Ltd to pay the prosecutor’s costs.

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Decision last updated: 16 December 2022