Court of Appeal: Company’s €125K fine for death of employee increased to €1m

About this case:

• Judgment:
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Delivering the judgment of the Court of Appeal, Mr Justice John Edwards found that the sentence was unduly lenient as being a clear departure from the norm, and one caused by several errors of principle.

Background

In February 2016, Kilsaran Concrete Limited, a company incorporating a quarry and manufacturing facility in County Meath, was fined €125,000 after it pleaded guilty to a count of failing to ensure the safety of employees contrary to the Safety, Health and Welfare at Work Act 2005.

The charge arose out of an industrial accident which resulted in the death of 28-year-old Mr Barry Gargan on the 6th of September 2011.

In 2010, Kilsaran Concrete purchased a fully automated piece of machinery for the manufacture of pre-cast and standardised concrete products. A decision was made to use the machine in an unorthodox manner to make bespoke products, and certain safety measures were overridden to make the machine more efficient and cost-effective.

On the 6th of September 2011, due to the safety measures being over-ridden, Mr Barry Gargan was crushed when working with the machine, and was killed instantly.

In the Court of Appeal, the DPP sought a review of the sentence imposed on the grounds that it was unduly lenient.

Criminal Court

Mr Christ Bagnall, the most experienced operative at the plant, told the Court that he had previously expressed concerns over the safety of the procedure. Mr Carl Griffin had instigated the unorthodox procedure – Mr Bagnall indicated that despite his concerns, Mr Griffin insisted that that procedure should nonetheless be used.

In the course of the Criminal Court proceedings, a student who had been working at the plant over the summer, told the court that he had earlier been involved in a “near miss” incident involving the same procedure, in which he was almost killed.

In the Circuit Criminal Court, Mr Griffin was co-accused with Kilsaran Concrete. He also pleaded guilty and received a fine of €10,000 – however the DPP did not seek a review of that sentence in the Court of Appeal.

The court was told that the Health and Safety Authority (HSA) accepted that the nature of Kilsaran Concrete’s business, and particularly quarrying, was comparatively high risk. Despite this Kilsaran Concrete was considered by the HSA to have a relatively good safety record.

Kilsaran Concrete pleaded guilty to a count of failing to manage and conduct work activities in such a way as to ensure, so far as was reasonably practicable, the safety, health and welfare at work of the employees of an undertaking, resulting in personal injury to an employee, contrary to section 8(2)(a) as it relates to section 8(1) of the Safety, Health and Welfare at Work Act 2005 and section 77(9)(a) of the Safety, Health and Welfare at Work Act 2005.

In February 2016, Kilsaran Concrete was ordered to pay a fine of €125,000.

Court of Appeal

In seeking a review of the fine, the DPP relied on the English case of R v. Howe and Son (Engineers) Ltd. 2 All E.R. 249, wherein a number of principles applicable to prosecutions in health and safety matters were identified.

These principles have been approved and applied in a number of Irish cases - see The People (Director of Public Prosecutions) v. Rosebery Construction Ltd 4 I.R. 338 and The People (Director of Public Prosecutions) v. Oran Pre-Cast Concrete Ltd JILL-CCA 121601 (Court of Criminal Appeal, ex tempore, 16th December 2003).

The DPP submitted that insufficient account was taken of a number of aggravating features in the case; pointing to the inherent and obvious danger presented by the system of work and the particular work practice adopted in this case, and submitting that there is a clear distinction between a system which presents inherent and obvious danger and an accident occurring due to an isolated instance of human error.

Furthermore, a number of features of Kilsaran’s case were indicative of an inherently dangerous system of work, involving the deliberate and conscious taking of an unjustified risk as opposed to an omission through negligence or inadvertence.

In all the circumstances, the three-judge Court of Appeal was satisfied that the sentence was unduly lenient as being a clear departure from the norm, and one caused by several errors of principle.

Resentencing

The Court considered 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”.

Allowing a 50 per cent discount for mitigating factors in the case – including a guilty plea, cooperation with the investigation, and prompt payment of compensation to Mr Gargan’s family – the fine imposed on Kilsaran was one of €1,000,000.