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

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

BSA Fire's breach exposed three workers to a risk of death or serious injury and caused Mr Murphy's death. The risk from uncontrolled release of energised water and air in pipes was well known, the potential consequences were death or serious injury, the likelihood was not insignificant, and the steps required to eliminate or minimise the risk were simple, minimally burdensome and low cost. Although BSA Fire had safety systems and significant mitigating factors, its system did not adequately address the pressurised pipe and end cap risk. Its culpability was in the mid range. The appropriate fine was $600,000, reduced by 25% for the early guilty plea to $450,000.

Jurisdiction
Australia
Judgment Date
16 December 2022
Procedural Posture
Criminal Prosecution for Work Health and Safety Offence Contrary to S 32 of the Work Health and Safety Act 2011 (nsw) / Sentence Following Plea of Guilty
Outcome
Defendant convicted and fined $450,000 after 25% discount for early guilty plea; costs ordered for prosecutor.
Legal Topics
['duty of Persons Conducting a Business or Undertaking' 'risk of Death or Serious Injury' 'failure to Control Pressurised Pipework Hazards' 'objective Seriousness' 'mitigating and Aggravating Factors' 'early Guilty Plea' 'general Deterrence' 'specific Deterrence' 'capacity to Pay Fine' 'prosecution Costs']
['criminal Law' 'work Health and Safety' 'sentencing' 'costs'] ['duty of Persons Conducting a Business or Undertaking' 'risk of Death or Serious Injury' 'failure to Control Pressurised Pipework Hazards' 'objective Seriousness' 'mitigating and Aggravating Factors' 'early Guilty Plea' 'general Deterrence' 'specific Deterrence' 'capacity to Pay Fine' 'prosecution Costs']

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Procedural Posture

Criminal Prosecution for Work Health and Safety Offence Contrary to S 32 of the Work Health and Safety Act 2011 (nsw) / Sentence Following Plea of Guilty

Legal Issues

  1. 1 ["What sentence should be imposed for the defendant's failure to comply with its work health and safety duty under s 19 of the Work Health and Safety Act 2011 (NSW), exposing workers to a risk of death or serious injury contrary to s 32 of the Act." 'How objectively serious the offence was, including the foreseeability and consequences of the risk and the availability and burden of reasonably practicable measures.' 'What weight should be given to aggravating factors, mitigating factors, deterrence, remorse, cooperation, lack of prior convictions and the early guilty plea.' "Whether the defendant's capacity to pay affected the fine."]

Ratio Decidendi

BSA Fire's breach exposed three workers to a risk of death or serious injury and caused Mr Murphy's death. The risk from uncontrolled release of energised water and air in pipes was well known, the potential consequences were death or serious injury, the likelihood was not insignificant, and the steps required to eliminate or minimise the risk were simple, minimally burdensome and low cost. Although BSA Fire had safety systems and significant mitigating factors, its system did not adequately address the pressurised pipe and end cap risk. Its culpability was in the mid range. The appropriate fine was $600,000, reduced by 25% for the early guilty plea to $450,000.

Court Disposition

Defendant convicted and fined $450,000 after 25% discount for early guilty plea; costs ordered for prosecutor.

Orders

  • ['BSA Advanced Property Solutions (Fire) Pty Ltd is convicted.' 'The appropriate fine is $600,000 but that will be reduced by 25% to reflect the early plea of guilty.' 'Order BSA Advanced Property Solutions (Fire) Pty Ltd to pay a fine of $450,000.' 'Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that...