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Prosecution Details

Offender Ryan and Melissa Pty Ltd (ACN: 152 339 529) trading as Vivian Plumbing and Civil


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Charge Charge Number Offence Date Date Convicted Regulation Section Penalty Provision Penalty Imposed Date Sentenced
1 PE45493/2020 17/10/2018 27th October 2022 3A(3)(b)(i) $600,000.00 9th December 2022
Description of Breach(es)

Being an employer did not as far as is practicable provide and maintain a working environment in which the employees of the employer are not exposed to hazards and by that contravention caused the death of an employee

Background Details

This charge arises from an incident where a 100mm water main burst and a plumber working in an excavated trench adjacent to this was engulfed by water/sand and died.

Workplace and Employment

Ryan and Melissa Pty Ltd (ACN: 152 339 529) (In Liquidation) trading as Vivian Plumbing and Civil (Vivian Plumbing), is an Australian Company which did plumbing works.  Vivian Plumbing were engaged by Badge Constructions (WA) Pty Ltd (Badge).  Badge had a contract for construction and refurbishment works of the Mosman Park Shopping Centre situated at 50 Harvey Street, Mosman Park (the Workplace). Badge commenced at the site in late 2017.  They had engaged Vivian plumbing to perform various plumbing works including works to install and connect a new 225mm sewer pipe line to the Minister’s sewer at the Workplace.

Relevant Legislation, Internal Policies and Procedures

The Occupational Safety and Health Regulations (OSH Regs) define high-risk construction work as including  construction work involving excavation to a depth of more than 1.5 metres;

The Code of Practice for Excavation in 2005 provides practical guidance to prevent injuries in workplaces where excavations and associated earthworks are performed.  Badge had various policies and procedures for the Workplace, including a project specific Badge Safety Manual, but not all of these were followed.

Safe Work Method Statements (SWMS) & rescue plans

Badge required all workers to be inducted when first attending site. This is to go through safety procedures, any relevant Safe Work Method Statements (SWMS) and the various policies and procedures relevant to the site.  Badge identified in its Safety Manual that excavations deeper than 1.5m were high risk work and required all subcontractors who were going to perform this work to submit the following:

  1. Site specific SWMS covering the high risk work to be submitted for approval prior to commencing the work;
  2. Site specific rescue plans must be included in all SWMS;
  3. Excavation permit forms to be completed at site prior to commencing excavation works to be approved by a Badge site manager or safety officer prior to commencing excavation works.

Vivian Plumbing submitted an initial SWMS for excavations greater than 1.5m to Badge for review in late 2017. 

On 2 July 2018 Badge undertook a further SWMS review of Vivian Plumbing’s SWMS for excavations over 1.5m deep. This was marked as satisfactory and signed off by the Safety Officer despite the SWMS containing no rescue plan. On the review form the Badge reviewer ticked N/A next to the rescue procedure prompt. 

Asbestos Cement Pipe adjacent to sewer works area

Adjacent to where the 225mm sewer pipe was to be dug was a 100mm asbestos cement (AC) water main. This water main was a live ring main which meant that water was fed in from both ends of the pipe. As this was a Water Corporation asset, the Water Corporation had exclusive control over it.  Vivian Plumbing was not permitted to interfere with the water main in any way.  The presence and location of the 100mm AC water main was known by senior management at both Badge and Vivian Plumbing. It was located on a Dial Before You Dig plan and was appropriately identified.  Once the plan for the location of the 225mm sewer pipe line was conveyed to the Water Corporation for them to conduct a risk assessment the Water Corporation strongly suggested that the 100mm AC water main needed to be cut and capped to eliminate a risk of failure and a risk to the crew. This was because works too close to the 100mm AC pipe could damage the asset.  

On 28 August 2018 the Water Corporation prepared an estimate only quotation for the work of temporarily cutting and sealing the 100mm AC water main and temporarily relocating services whilst works were undertaken. This estimate was for $29,737.17 and was sent to the plumbing supervisor on behalf of Vivian Plumbing.

After discussions between Badge and Vivian Plumbing, the plumbing supervisor sent an email to the Water Corporation on 11 September 2018 proposing that the proposed 225mm sewer pipe line could be moved to be installed an additional 300 – 400mm away from the 100mm AC water main.

On 17 September 2018 the Water Corporation sent back a revised Asset Protection Risk Assessment. The key asset for protection was the 100mm AC water main. This Risk Assessment detailed the revised alignment the sewer was to be installed on, stated that there was to be “gradual install of trench boxes to required depth”, and noted that extreme caution is needed as AC mains are fragile. It also detailed other procedures to be followed, but this did not include that the 100mm AC water main was required to be cut and capped.

Incident at the Workplace on 17 October 2018

Four Vivian Plumbing workers were at the Workplace on 17 October 2018. These workers were the Plumbing Supervisor, Excavator Operator, Plumber (the victim), and apprentice.

When the Vivian Plumbing workers arrived on site an excavator had already been delivered in order for the loader operator to dig a trench for the ordered trench boxes. He completed the Badge Excavation Permit as was required. This excavation permit was signed by the loader operator and the victim and dated 17 October 2018 and taken to the Badge site office. The Badge Site Manager was not at work yet and the Safety Officer was not on site. The loader operator left the Badge Excavation Permit on the Site Manager’s desk. The Site Manager arrived shortly after that but did not see and therefore did not check or sign off on the Excavation Permit.

There was no rescue plan in place for the excavation despite the depth of the excavation being greater than 1.5 metres.  The victim was inside the trench box trying to locate the end of the 225mm sewer pipe. The depth of the excavation was between 2.2 and 3 metres. The pipe that the victim was trying to locate was approximately 3 metres deep. Whilst the victim was inside the trench box the 100mm AC water main burst and water and sand engulfed the excavation.

Other workers had come to assist to try and save the victim. They were unable to do so and his head was submerged under the water and sand where he died.


The cause of death was immersion. The victim had widespread aspiration of thick sandy water with heavy congested lungs.  He had to be removed from the trench later that evening by emergency service personnel.

Vivian Plumbing caused the victim’s death due to not taking practicable measure of refusing to proceed with the work unless the 100mm AC pipe had been cut and capped or alternatively isolated.

Subsequent to the Incident

The Water Corporation attended the site in order to cut water supplies to the area to make it safe. Later the Water Corporation diverted the water main away from the area of the excavated trench.

Badge engaged another civil construction company to complete the 225mm sewer connection works.  The civil construction company hired trench boxes, hand railings, and a ladder from the hire company.

On 5 December 2018, the civil construction company completed an Excavation Permit. The permit included emergency response arrangements such as a ladder, and a spotter to be used at all times, and monitoring of the trench by a competent person on a daily basis. The permit was signed off by the Badge Safety officer before any work commenced.

Outcome Summary

On 27 October 2022 Ryan and Melissa Pty Ltd (ACN: 152 339 529) trading as Vivian Plumbing and Civil entered a guilty plea and were convicted.  Sentencing was heard on 15 November 2022 with decision on sentencing handed down on 9 December 2022.  Magistrate issued a fine of $600,000 and ordered costs as agreed of $20,000.

Court Magistrates Court of Western Australia - Perth
Costs $20,000

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