Alison Fanagan of A&L Goodbody considers the scenario below.
Ireland, unlike England and Wales, does not have sentencing guidance relative to health and safety offences. Having said that, there are quite a number of Court decisions that provide useful guidance, including the recent decision of the Court of Appeal on 6 April 2017 in DPP v Kilsaran Concrete Limited.
That case concerned an appeal by the DPP against what it saw as the overly lenient fine of €125,000 imposed on Kilsaran Concrete Limited relative to a fatality involving an employee.
Barry Gargan died on 6 September 2011 as a result of a crush injury sustained at his workplace when a cleaning arm descended without warning. Evidence had been given that a wet cast production line had been adapted so that it could be used more quickly, but in a manner that overran safety precautions. The door of the safety cage was left open, employees were left inside the equipment, and a cleaning arm was disabled regularly. Evidence was given of a “near miss” involving the same procedure i.e. where the cleaning arm had descended and almost crushed a student on work experience. Evidence was also given that the safety measures were deliberately overwritten in order to process curbs more quickly.
Kilsaran Concrete Limited, with one previous health and safety offence in 2006 (arising out of a serious accident in a quarry where an operator fell off a working platform and received serious injuries, resulting in Kilsaran being fined €100,000) was charged in this case with breaches of s.8(2)(a) and s.77(9)(a) of the Safety, Health and Welfare at Work Act 2005. S.8(2)(a) clarifies that an employer’s general duty to, so far as is reasonably practicable, ensure the safety health and welfare at work of his or her employees includes managing and conducting work activities in such a way as to ensure, the safety, health and welfare at work of his or her employees. S.77(9)(a) notes that this breach amounts to a criminal offence, in relation to which the maximum fine is €3 million currently.
In calculating the €125,000 fine, the sentencing trial judge accepted that the offence was at the “middle range“, and noted the victim impact statement delivered by the deceased’s man’s father. The judge then took into account (by way of mitigation) the early plea by Kilsaran Concrete Limited, and significant compensation payments made to Mr Gargan’s family and to other employees who had suffered trauma as a result of witnessing the incident. He determined that the appropriate fine was €125,000.
The Court of Appeal considered that the sentencing judge had made an error in taking into account the compensation sums paid. The Court considered it was important to note the deliberate and conscious taking of risk by Kilsaran Concrete Limited, for financial gain; the fact that there had been a “near miss” and clear warning of the likelihood of such an incident such that it could be said to be “wholly foreseeable“; and that it is important for the fine to be pitched “at a level capable of having determined effect on the actual offender with respect to that offender’s future conduct“. Reference was made by Edwards J, (delivering the judgment of the Court of Appeal), to previous Court decisions including Roseberry Construction Limited, Oran Precast Concrete, O’Flynn Construction Co. Limited, Roadteam Logistics Solutions, Smurfit News Press Limited, and Cavan County Council and Oxigen.
The Court considered the gravity of the case, the allowances to be made for mitigation, the need for proportionality, and what it described as “sentencing policy issues“, again highlighting the need for a deterrent effect.
By way of conclusion, the Court determined as follows:- “We consider that the gravity of this case, considered with reference to the range of punishments set by the Oireachtas, and having regard to the respondents very significant culpability and the substantial harm done, merited a headline sentence involving a fine of €2,000,000. We will allow a 50% discount for the mitigating factors in the case. The final sentence therefore will be a fine of €1,000,000 “.
The previous conviction of Kilsaran Concrete Limited was also taken into account.
€1,000,000 is the same level of fine imposed on appeal in DPP v Roadteam Logistics Solutions in 2016, which case involved inadequately secured cables falling off a truck, resulting in the deaths of two individuals and personal injury to four additional persons, albeit that case involved no evidence of deliberate action for financial gain.
Please click here to access a copy of the Court of Appeal decision: DPP v Kilsaran Concrete Limited
- Alison Fanagan, Solicitor
- Committee Member, HSLAI
- May 2017