Farrell v Borelli Concrete Pumping Pty Ltd [2025] SAET 49

1. Borelli Concrete has a primary duty of care under s 19(1)(a) of the WHS Act to ensure, as far as reasonably practicable, the health and safety of any workers it engages while they are at work.
2. By its plea of guilty it has accepted that it failed to comply with this duty and thereby exposed an individual to a risk of death or serious injury. The maximum penalty for this offence is $1,500,000.
3. The particular failings included in the charge relate to two areas of risk management.
4. The first relates to its failure to adequately identify and manage the hazard posed by using air pressure to clean the hose.
5. The second relates to its failure to provide and maintain safe plant in relation to the air pressure controls on the pump to which the hose was connected.
6. These particulars were expressed on the Information as follows:

1.2.2. The defendant failed to provide and maintain, so far as was reasonably practicable, a safe system of work for the task, because it failed to perform an adequate hazard identification and risk assessment process specific to the task and to then ensure measures were in place to eliminate and or minimise the risk because the defendant:

1.2.2.1. Failed to identify the hazard and assess the risks presented by the tap controlling the air pressure not being completely shut off allowing air to fill the hose, causing the internal pressure of the hose to build up to a point which caused 'hose whip' and to eliminate and/or minimise the risks;

1.2.2.2. Failed to identify the hazard and assess the risks presented by McCormick undertaking the task, including that the task might involve controlling the head of the pump and to eliminate and/or minimise the risks by providing and maintaining an appropriate Safe Work Method Statement and a documented Safe Work Procedure in relation to the safe operation (including cleaning) of the Concrete Plant carried out near or adjacent to a road.

1.2.4. The defendant failed to provide, so far as was reasonably practicable, the provision and maintenance of safe plant and structures because;

1.2.4.1. The tap controlling the air pressure on the pump was an inadequate engineering control to minimise risk to the worker.

1.2.4.2. There was no, or no adequate testing of the tap controlling the air pressure on the plant to ensure its proper operation including but not limited to the absence of a routine pre-start testing.

1.2.4.3. The defendant failed to minimise the risk that a worker might be struck by the pump's hose and/or any of its attachments and/or any of the contents due to air pressure build up by making sure the plant was equipped with a spring loaded tap.

1.2.4.4. There was no or no adequate preventative maintenance inspections in place for the plant including no or no adequate records.[1]

1. The Statement of Agreed Facts included more than 30 facts not all of which it is necessary to repeat. These were supplemented by the affidavit of Mr Borelli, which was not challenged.
2. Borelli Concrete is a company conducting a small business. Mr Borelli is the owner and sole director of the company. It operates in what was described as a niche market, in that it supplies and operates pumps to transfer concrete from the concrete supply trucks to where it is required on a site. The residence in Vale Park at which the incident occurred was a typical type of job. Concrete was required for the construction of a patio and swimming pool surround at the rear of a newly constructed house, where there was insufficient room between the house and the boundary for a concrete truck to reach the position where the concrete was required.
3. At the time of the incident, Borelli Concrete had 12 employees, including Mr Borelli, his son and his partner. The five longest serving employees were employed as supervisors.
4. Mr McCormick was not one of Borelli Concrete's regular employees. He had been introduced to Mr Borelli by one of his regular workers, as a friend who was looking for work. He was invited to do some casual work experience to see if he liked and suited the work. Mr Borelli's evidence was that he had purchased a new pump and would need another worker when it arrived and so he was interested to consider Mr McCormick for a position at that time.
5. Mr McCormick accepted the work experience invitation and had attended a number of concrete pumping jobs prior to the incident. He was not required to attend but did so at times which suited him. It was common ground that when he did attend, Mr Borelli paid him in cash, although the amount was not disclosed.
6. Mr McCormick was undoubtedly a worker as defined in the WHS Act, and Borelli Concrete owed him a duty of care.
7. Atkins Building Group Pty Ltd ('Atkins') was the principal contractor for the Vale Park residential development and it engaged Borelli Concrete to pump the concrete from the truck at the front of the site to the pool/patio area at the rear of the site. It has not been charged in relation to this incident and no fault is attributed to it.
8. The plant used for this job was described as a Trailer Concrete Pump by Jacon Technology Pty Ltd. This had an air tap which controlled the flow of pressurised air into the hose. This was a simple tap which was manually turned on and off.
9. On the day of the incident, Mr McCormick arrived at the worksite at about 7am with two regular employees - crew supervisor Michael Gotz and another employee Terry Zographos.
10. Before they started work, Mr Gotz gave the other two workers a verbal briefing about the job which included some information about site hazards and instructions. Mr McCormick's main task was turning the air pressure tap on and off when instructed to do so by Mr Gotz, and otherwise observing and assisting generally.
11. After the concrete pour was completed, the hose had to be cleaned. This was when the task departed from the usual practice. It was described in the Statement of Agreed facts as follows:

20. After finishing the concrete pour, the workers proceeded to commence cleaning the plant. The cleaning procedure involved pushing the remaining concrete from the hose using air pressure and a foam ball.

21. McCormick placed a foam ball into the hose and connected the air hose to the concrete hose. Gotz directed McCormick to control the air tap and put air pressure into the hose for the purposes of cleaning out the line. The workers then decided to move the hose to the front of the building to clean it out as there was less risk of property damage. McCormick was directed to turn off the air tap and then went to assist with moving the hose.

22. The workers moved the hose to the front of the residential worksite. The workers each held a section of the hose by creating a kink to control the air pressure as the excess concrete was released.

23. Unbeknownst to the workers, air pressure was continuing to build up in the hose as it was moved. When one kink was released, the hose began to whip, causing McCormick to lose control of the hose and excess concrete to strike him to the stomach, throwing him into a fence.[2]

1. It was not immediately obvious how serious Mr McCormick's injuries were. He was able to get up from where he was thrown against the fence. Neither of the Borelli Concrete employees were qualified in First Aid. However, an employee on site from Atkins was and attended to him while waiting for the ambulance to arrive.
2. Mr McCormick was then treated at the Royal Adelaide Hospital for internal bleeding, a tear to the small bowel and bruising to the duodenum and colon. He was initially placed into an induced coma and treated surgically, before being discharged almost two weeks later on 27 August 2021.

Management of Risk in relation to Concrete Pumping Works

1. The Statement of Agreed Facts includes standards which Borelli Concrete should have adhered to, but did not.

9. Australian Standard AS 2550.15: Cranes, hoists and winches-Safe Use (Concrete Placing Equipment) stipulates that operating instructions shall be established specific to the concrete placing equipment detailing safe procedures.

10. SafeWork South Australia's Managing the Risks of Plant in the Workplace Code of Practice stipulates that hazards associated with plant in the workplace should be identified by looking at the workplace and how the work is to be carried out as well as assessing the hazards associated with the plant itself. [3]

1. Although Mr Gtoz conducted a briefing with the other two workers before the commencement of the job on 14 August 2021, there was no Safe Work Method Statement for the task of concrete pumping works at the construction site, which is a requirement for high risk work.
2. While there was a Job Safety Analysis ('JSA') completed, this was general and not done until after the incident and only then because Atkins asked for a copy.[4] While Mr McCormick's name appears on it, his signature does not and there was no disagreement that he did not see it.
3. As at 14 August 2021, no risk assessment specific to the use of the trailer pump, including the cleaning operation, had been done. Nor were there any documented maintenance and inspection records for that plant.
4. For safety Borelli Concrete had relied on training and instruction on the job for its workers as well as a general JSA.
5. While it is acknowledged that this on the job training did include some reference to safety issues, it was not enough when the situation arose of doing something differently, namely moving the hose during the cleaning operation.
6. Completing a Safe Work Method Statement, or even an unwritten pre-commencement hazard assessment process, should have alerted the workers before the job started about the requirement to move the hose before cleaning, and how there might be additional risks associated with that process.
7. It may also have given Mr McCormick the benefit of questioning what was to be done and his role in it before he was tasked with handling the whip end of the hose.
8. As it was, the air tap was either not firmly off before the workers started the move, or it was bumped in the process of the move, allowing more air to enter the hose and the pressure to build to a dangerous level undetected.

1. In relation to improving its safety procedures and practices after the incident, Borelli concrete undertook a number of significant improvements. Some of these were in response to requirements imposed on them by SafeWork SA. Others were of their own initiative. These were described in the Statement of Agreed Facts as follows:

27. After the incident, SafeWork SA issued compliance notices to the Defendant, including:

27.1. Improvement Notice WHSIN 204817 issued on 7 September 2021, recommending the Defendant identify the hazards and associated risks with concrete pumping and revise control measures for formalisation of risk management procedures,

27.2. Improvement Notice WHSIN 204842 issued on 7 September 2021 for the preparation and implementation of a SafeWork Method Statement for high risk construction work; and

27.3. Improvement Notice WHSIN 204825 issued on 7 September 2021 for the preparation and implementation of regular inspections and maintenance of the concrete delivery pipes and records.

28. By 7 October 2022, the Defendant had complied with the Improvement Notices WHSIN 204817, 204842; and 204825.

29. Since the incident the Defendant has made the following improvements:

29.1. Engaging a Work Health Safety Consultant to update policies and procedures

29.2. Developed and implemented prestart safety check, preventative maintenance inspections for the use of the plant and formal records of those inspections

29.3. Developed a risk assessment and hazard identification procedure in relation to the use of the plant

29.4. Updates to the plant including installing of a dead person's lever on the air tap and spring loaded air control valve

29.5. Developed a number of Standard Operating Procedures in relation to concrete pumping works (including cleaning), and

29.6. Created a task specific Safe Work Method Statement following SafeWork SA feedback. [5]

1. Section 11 of the Sentencing Act 2017 (SA) ('the Sentencing Act') sets out the factors to be taken into account in determining sentence for an offence. In this matter I am determining sentence for a corporate offender and summarise the relevant factors as these include the objective seriousness of the offence; general deterrence; specific deterrence; whether substantial harm was caused; any previous convictions; the prospects of rehabilitation and the likelihood of reoffending; genuine remorse and capacity to pay a fine.

1. Mr Holland for Borelli Concrete submitted that while the modification of the pump air tap to include a dead person's lever and an automatic shut off mechanism were available and relatively inexpensive to install, neither of these measures is a requirement of the Australian Standards for this type of plant. So, while they were available, not having them in place was not a breach of the Australian Standards and hence the failure to have them installed should not be considered an objectively serious safety breach.
2. The operation of the plant without these readily available engineering safety measures was not the only element of the offending which caused the injury. It could be said that in choosing to operate at only the minimum of the Australian Standards it behoved Borelli Concrete to pay particular attention to other aspects of its safety management. Not only did it do nothing to compensate for the lack of readily available engineering controls, but it did not even meet the basic requirements for safety risk assessment and management as set out in the requirements for high risk construction work. That makes its offending serious. It knew that its work is high risk construction work. It knew that using air pressure to clean the hoses was a potentially dangerous procedure. Yet it relied only on informal and undocumented safety briefings and inadequate assessment and management of obvious risk. Its offending was objectively serious.
3. Borelli relied on its safe operation over many years with these informal systems as evidence that it did take safety seriously even though it was not documented. These submissions are not uncommonly made in this jurisdiction. However, an absence of safety incidents and injury in those circumstances can be purely good luck, that works only until it runs out. That is why there are formal procedures and requirements, particularly for high risk work. Those procedures and requirements reinforce on every occasion of risk that the hazards must be identified and risk reduction measures put in place to prevent workplace injury. They are there because, when they are followed, generally they work and people go home uninjured.

1. It was submitted by Borelli's counsel that the niche operation of concrete pumping in South Australia means that there are very few operators doing this kind of work, and that new technology in this part of the industry means that the type of pumping and hose cleaning that Borelli has been doing is being phased out. Consequently, he said, there little need for general deterrence as the scope of effect of this sentence was limited in terms of numbers and duration.
2. However, the issue is broader than that. The reliance on informal undocumented safety procedures that fail to meet the real challenges that high risk work involves is still more common than it should be. There are many operations conducting high risk work in various forms. General deterrence requires that they also be reminded of the real injury and financial consequences that can arise from anything less than a complete and ongoing commitment to health and safety in the workplace.

1. While Borelli concrete have undertaken significant measures to reach a level of workplace health and safety compliance that it should have had in place already, it is still operating in an industry which includes tasks that are intrinsically high risk. The new set of safety procedures it commissioned will be effective only as long as those with responsibility for using them do so. The engineering measures that it implemented by way of modifications to the air tap on the hose should prevent any similar incident in the future if they are working as they should. Ongoing safety measures include routine inspection and maintenance of plant. Again, this only happens when those with responsibility for making it happen do so.
2. Specific deterrence in relevant to assisting an employer to keep workplace health and safety always at the front of its mind, by the memory of the financial consequences of letting it slip down the priority list.

1. The maximum penalty for this offence is $1,500,000. The timing of the filing of the Information, before 1 December 2024, means that I am restricted to imposing a fine of no more than $300,000. However, that is a procedural limitation only in this Court as a higher penalty could be imposed by a Judge if the circumstances indicate it is warranted.
2. Counsel for the Informant referred me to a number of cases where hose whip was the risk that led to prosecution, as background for my consideration but without suggesting any of them imposed any precedent that I need to follow.
3. While they were helpful to consider, each offence calls for sentencing on its own facts and circumstances.
4. In the NSW case of SafeWork NSW v NonAbel Concrete Pump Pty Ltd,[6] a concrete pump hose whipped out of control and killed the worker who was holding the whip end.[7] That hose was being used contrary to the manufacturer's instructions in that it was both longer than stipulated and had a metal connector attached which was warned against. Neither of those transgressions apply in this matter.
5. In the NSW case of SafeWork NSW v Silver Raven Pty Ltd,[8] a high pressure water hose whipped out of control and the water jet pierced a hole in a worker's leg, after the workers had altered the jet nozzle and the worker controlling the flow of water by a foot pedal moved more than four feet away from it, so was not close enough to shut it down immediately it went out of control. The injured worker was not wearing appropriate personal protective equipment for the job, being clad in cotton drill pants rather than PPE Kevlar. The workers altered the jet nozzle in response to being given a task that was not included in their daily safety briefing, by the client at the worksite. While the change of task could be compared to this matter, the disregard of personal protective equipment and unauthorised modification of the plant are not similar. The employer in that matter was fined $225,000, reduced by 25% from $300,000 on account of the guilty plea.[9]
6. In the SA case of Awwad v Kilkee Pty Ltd[10], a worker lost an eye when he attempted to clear a blockage in a concrete sprayer and its contents shot out under pressure, in circumstances where there was no safe operating procedure for that task. While the absence of a Safe Work Method Statement in this matter is similar, in that matter there appeared to be a complete absence of reference to safety, which was not the case here. In that matter the sentencing Magistrate imposed a fine of $14,400. While that appears very low indeed by today's sentencing standards, it was 14.4% of the maximum at that time of $100,000.[11]
7. While the circumstances are similar in that it was a concrete cleaning task being conducted in the absence of the relevant safety procedures, there was in that case not even any verbal recognition of the danger posed by the task. The maximum fine is no longer $100,000 for a corporation. It is now $1,500,000. A fine of 14.4% of the maximum now would be $217,000.

1. The injuries to Mr McCormick were serious. Without the timely and effective medical intervention he received he may not have survived.

Previous Convictions, Prospects of Rehabilitation, Likelihood of Reoffending

1. Borelli concrete has no previous convictions. The steps it has taken since the incident, both in response to the Work Health and Safety Improvement Notices and of its own initiative give me confidence that rehabilitation it has undertaken is promising and its likelihood of reoffending is low.

1. I am satisfied that Borelli Concrete, through the personal actions of its director Mr Borelli, has demonstrated genuine remorse for both Mr McCormick's injury and its work health and safety systems shortcomings which led to it. Mr Borelli visited Mr McCormick in hospital, visited his mother and offered to pay his medical expenses, enquired after him repeatedly during the course of his recovery, and then formally engaged him as a full time employee November 2021, initially on modified duties until he was fully fit to work again. He remained in their employment until February 2023 when he resigned to take up a position elsewhere. It did this of its own initiative and not in response to any requirement for it to do so pursuant to the Return to Work Act 2014 (SA) ('the RTW Act').

1. While Mr Borelli attached to his affidavit a set of company financial reports for the financial year ending 30 June 2024 which show the company to have traded at a loss over the past two financial years, these were referred to by its counsel as being only to establish that the company is a small business, which is a consideration for sentencing. There was no submission of incapacity to pay pursuant to s 120 of the Sentencing Act or that it would not be able to meet a fine which the court might impose.

1. Section 124 of the Sentencing Act provides that a court may make an order requiring a defendant to pay compensation for injury, loss or damage resulting the offence and, where the circumstances of the offence suggest a right to compensation has arisen, give reasons if compensation is not ordered.
2. Subsection 124(6)(ii) precludes a compensation order where there is an entitlement to compensation under the RTW Act.
3. Clearly Mr McCormick suffered injury from the offence such that a right to compensation has arisen. What is not so clear is whether or not he has an entitlement under the RTW Act.
4. Although injured in August 2021, Mr McCormick did not make a claim for compensation under the RTW Act until 17 March 2023. Return to Work SA ('RTWSA') via its claims agent Employers Mutual SA Pty Ltd ('EML'), rejected that claim on two grounds: firstly that he did not provide sufficient information for EML to determine his claim; and secondly that it was not satisfied on the evidence it had that he was in an employment relationship with Borelli Concrete. This determination was attached to Mr Borelli's affidavit and was dated 24 May 2023.
5. I also note that the determination of EML rejecting his claim is an administrative decision capable of review and his entitlement under the provisions of the RTW Act is not a matter that has been judicially determined. The failure of EML to be satisfied that he was in an employment relationship with Borelli Concrete, when the accepted circumstances included him doing paid productive work on a casual basis, however described, is obviously open to challenge. He may still have an entitlement to compensation under the RTW Act yet to be claimed and determined.
6. If Mr McCormick has no entitlement to compensation under the RTW Act, then it would appear to me purely from the Discharge Summary from the RAH included in the Book of Documents that he had at least an entitlement to compensation for non-economic loss for the pain and suffering he experienced from the injury.
7. I adjourned the sentencing hearing to allow for the parties to investigate whether Mr McCormick had initiated any application for review of the rejection of his RTW claim or any other claim for compensation in relation to his injury and whether there was to be any evidence led in relation to any order that I might make for compensation.
8. When this hearing was held on 9 April 2025 I was informed by counsel for the Informant that a liaison officer from SafeWork SA had been in contact with Mr McCormick about the possibility of compensation, and been told by him that he had obtained legal advice and did not want to claim compensation through the sentencing process.
9. Counsel for Borelli Concrete informed me that he had followed up with RTWSA and no application for review and no further claim for compensation had been received to date from Mr McCormick. Nor had his client been informed of any common law damages claim against it by Mr McCormick.
10. I am unable to conclude, purely on the basis of the administrative decision of EML, that he has no entitlement under the RTW Act. I note that s 124(6)(ii) refers to there being an entitlement, not there having been an accepted claim. He may yet make a claim and have his employment status more fulsomely considered, possibly by a judicial officer. Without more evidence, I am unable to determine whether s 124(6)(ii) applies to him.
11. I am very concerned that a young worker seriously injured through the offending of Borelli Concrete in 2021 appears to have not yet been compensated. That said, I am faced with information, which I have no reason to doubt, that he has obtained legal advice and does not want an order for compensation through this sentencing process.
12. For these reasons, I make no order for compensation.
13. It would have avoided the delays arising in this matter if the Informant and the Defendant had consideration of the obvious issues raised by s 124 of the Sentencing Act in their evidence and sentencing submissions.

1. It is appropriate that a conviction be recorded. No-one suggested otherwise.
2. In all the circumstances, noting that Borelli Concrete is a relatively small employer, which supported the injured worker back into employment and upgraded its work health and safety systems and practices, I consider the appropriate fine to be $120,000. I see no reason to reduce the available discount of 40% for its early guilty plea. This reduces the fine to $72,000 after application of the discount.

1. A conviction is to be recorded against Borelli Concrete Pty Ltd that on 14 August 2021 at Vale Park in the State of South Australia, it being a person having a health and safety duty pursuant to s 19(1) of the Work Health and Safety Act 2012 (SA) failed to comply with that duty and thereby exposed workers to a risk of serious injury or death contrary to s 32 of that Act.
2. The defendant is to pay a fine of $72,000 being a reduction of 40% from $120,000.
3. The defendant it to pay prosecution costs of $2,310.00.
4. The defendant is to pay the victims of crime levy of $437.00.

[1] Information and Summons dated 17 July 2023.

[2] Statement of Agreed Facts [20]-[23].

[4] Book of Documents page 41 paragraph 35

[6] [2020] NSWDC 65.

[8] [2019] NSWDC 425.

[10] [2005] SAIRC 67.