Road haulage company loses appeal against €1 million fine

The Court of Appeal have dismissed an appeal brought by a road haulage company against the severity of a €1 million fine imposed on it following its plea of guilty on 18th December 2012 to an offence contrary to ss. 12 and 77(9) of the Safety Health and Welfare at Work Act 2005.

The particulars of the offence are that Roadteam Logistic Solutionsfailed to conduct an undertaking in such a way that individuals at a place of work are not exposed to risks to their safety, health or welfare.

The company, a major road haulage company, had not secured crates adequately onto a lorry. As the lorry approached a bend, the lorry itself and the trailer began to lean to the wrong side of the road. The straps that were used to secure the metal coils started to break and fly across the road, and the six steel coils then began to slide off the trailer. This resulted in the drivers of two motor cars travelling in the opposite direction being killed.

The deceased persons were Mary Lonergan and Vanessa McGarry. Injuries were caused to four other people. A detailed investigation of the collision, and the events proceedings it, showed that the freight being carried had not been properly secured.

The company had contended that the fine was excessive due to the fact that it was the company’s first health and safety conviction, the fact that they had pled guilty, that the offence involved a single incident and that the mens rea of the count to which the company pled guilty was one of reasonable care.

It was submitted that the trial judge had sentenced them on foot of a count that was not actually before the court, namely one of gross negligence.

They further argued that the trial judge was wrong to describe the offence as being on a level with the worst that had ever come before the Circuit Court, and questioned how an offence based on reasonable care which arose out of a single incident in which a driver did not ensure that his load was properly secured could fairly be placed in the category of the worst to have come before the court.

To support this submission, the appellant cited a number of cases in which there was an actual fatality, including The People (Director of Public Prosecutions) v. HSE (Unreported, Dublin Circuit Court, 25th October, 2013; The People (Director of Public Prosecutions) v. Arkil Limited (Unreported, Tralee Circuit Court, 27th June, 2013); The People (Director of Public Prosecutions) v. Gibbons Civil Engineering Limited(Unreported, Dublin Circuit Court, 1st July, 2013); The People (Director of Public Prosecutions) v. Wicklow County Council (Unreported, Dublin Circuit Court, 9th June, 2013); DPP v Drummonds Limited (Unreported, Dundalk Circuit Court, 25th October, 2013); The People (Director of Public Prosecutions) v. Kelly’s of Fantane Concrete Limited (Unreported, Nenagh Circuit Court, 11th July, 2014); and The People (Director of Public Prosecutions) v. B.I.S. Willich Industrial Services Limited(Unreported, Naas Circuit Court, 15th July, 2014).

The appellant also contended that seven figure fines were usually only imposed if there was a history of health and safety offences, or if there were particularly aggravating factors, citing The People (Director of Public Prosecutions) v. Smurfit Newspress Limited (Unreported, Trim Circuit Court, 29th October, 2004); The People (Director of Public Prosecutions) v. Bus Éireann (Unreported, Circuit Court Dublin, 21st May, 2008); and The People (Director of Public Prosecutions) v. O’Flynn Construction Company Limited 4 I.R. 500.

In support of its contention that the fine was excessive, counsel for the appellant relied on R. v. Balfour BC Rail Infrastructure Services Limited 1 Crim.R.(S) 65.

The appellant argued that in circumstances where a breach of health and safety matters is attributable to the negligence of an individual, rather than to management, a deterrent sentence on the company is not appropriate.

In support of this submission, counsel for the appellant maintained that the accident had been caused in part by the driver of the vehicle driving at excessive speed.

Finally, the appellant argued that knowledge that breach of a duty can result in a fine of a sufficient size to impact on shareholders will provide a powerful incentive for management to comply with a duty, but this is not to say that the fine must always be large enough to affect dividends or share price.

Counsel for the respondent argued that the penalty was proportionate, that two young families lost their mother as a result of the company’s failures, and that the impact of the incident had been devastating to those families, as well as to those injured.

The Court of Appeal noted that since the accident, the company had spent a considerable amount of money improving its health and safety standards, and that it had also built a training facility on its premises in Co. Wexford for the purpose of delivering training to its employees on health and safety matters.

However, the ability to pay a substantial fine was not an issue before the Court, and counsel for the respondent submitted that the expenditure on health and safety had been a necessary one.

The Court heard evidence from experts which confirmed that the webbing straps on the level of load restraint was grossly inadequate; the level of loader strength was grossly inadequate; the knotting of frayed ends was in complete contravention of good practice and should never have happened; the cradles provided no resistance to sideways movement; and of the straps had markings indicating their lashing capacity or breaking load.

The Court noted that at the time of sentencing, there were still health and safety issues surrounding the security of loads at the appellant’s premises.

While the Court acknowledged the cases referred to by the appellant, they found that these references are of limited assistance given that significant details of each of these cases are not contained in the reports.

It was noted that the driver had been going at 53kms per hour, but it was emphasised that the secure strapping of a heavy load on a truck is necessary to ensure the safety of other road users in all kinds of driving conditions and must also take account of the possibility that a driver may at times drive a vehicle in a manner not strictly in accordance with the road traffic laws.

The Court found that the sentencing judge was entitled to conclude that the omissions by the appellant amounted to a gross dereliction of the defendant’s statutory duty to road users under s. 12 of the Act of 2005.

It was found that the sentencing judge had taken into account the money spent on health and safety, and that just because an appellant company is successful and has significant assets this does not mean that it should be treated differently to others in the same position.

The sentencing judge had identified the aggravating factors as being the fatalities and personal injuries, and that the accident was clearly foreseeable because of the dangerous manner in which the load was being transported.

The mitigating factors were identified as being the plea of guilty, the health and safety steps taken by the company, the lack of previous convictions, and the apology given to the families impacted.

The Court of Appeal found it hard to disagree with the sentencing judge’s assessment that this was on a level with the worst cases to come before the Circuit Court.

They concluded therefore that while the fine was significant, it was just and proportionate given the nature of the omissions and the harm caused.

  • by Rachel Killean for Irish Legal News