Jason Milne

On 28 July 2023, the Court of Appeal gave its judgment in The People (DPP) v Palfinger Ireland Limited [2023] IECA 217. The court reviewed the sentence imposed by Limerick Circuit Court on Palfinger Ireland Limited in October 2022, following a guilty plea in relation to an offence of failure, as an importer and supplier of work equipment, to provide adequate information on the use of the equipment. Having considered mitigating factors and Palfinger’s moral culpability, Ms Justice Burns ultimately upheld the fine of €25,000 to be paid within 12 months.

Background

In March 2003, Palfinger imported and supplied a crane to Nationwide Crane Hire Limited. The crane, which included a winch, was hired from Nationwide to carry out repair work to Thomond Bridge in Limerick in August 2015. During the works, the overload protection safety device for the winch failed and the winch cable snapped, leading to the death of two of the workers.

An investigation into the incident revealed that when the crane was supplied to Nationwide in 2003, Palfinger failed to provide the part of the operator’s manual which related to the requirement to regularly inspect the crane’s overload protection safety device.

Palfinger pleaded guilty to failure, as an importer and supplier of an article for use at work, to supply adequate information about the use for which the article is designed, and about any conditions relating to it so as to ensure that, when in use, it will be safe and without risk to health, contrary to section 10(1)(b) and section 48(1)(a) of the Safety, Health and Welfare at Work Act 1989 and was fined €25,000.

The DPP appealed the leniency of the sentence under section 2 of the Criminal Justice Act 1993. The DPP’s principal complaint was that the fine imposed was unduly lenient in light of the gravity of the offence.

Principles to be applied in the case of a corporate offender

In determining whether there was a substantial departure from an appropriate sentence, Ms Justice Burns focused on Palfinger’s moral culpability, and considered specific case law relevant for determining the appropriateness of a sentence in the case of a corporate offender. Ms Justice Burns noted that DPP v Kilsaran [2017] 2 IR 510 set out the specific headings that must be considered in assessing the appropriateness of a sentence to be imposed on a corporate offender. This includes “an assessment of the gravity of the offence; the allowance for mitigating factors; proportionality and; the general sentencing policy.”

The court also considered that DPP v Cavan County Council [2015] IECA 130 is instructive in terms of setting out principles applicable to sentencing a corporate offender. This case recognised that the process of sentencing a corporate offender must take into account the gravity of the offence, including the culpability of the offender and the relevant circumstances of the entity in mitigation.

Mitigating factors

In this case, Ms Justice Burns was influenced by factual circumstances in determining Palfinger’s culpability. The court noted that while the part of the manual setting out the requirement for regular inspections was missing, the provision of the manual was not the sole instruction provided to Nationwide on the operation of the crane. The crane had been serviced by Palfinger three months before the accident and additionally, when the crane was delivered, Palfinger delivered a demonstration in relation to the operation of the crane during which its safety functions were explained.

In particular, the court took account of the precise nature of the offence under section 10(1)(b) in comparison to the moral culpability of Nationwide which was prosecuted for failure to manage its undertaking so as to ensure that workers were not exposed to health and safety risks during the course of their work under section 12 of the Health, Safety and Welfare at Work Act 2005:

The court held, having regard to the moral culpability of Palfinger along with the mitigating factors identified, that the sentence handed down was not unduly lenient within the meaning of the Criminal Justice Act 1993 and upheld the fine of €25,000 to the paid within 12 months.

Importance for suppliers and importers of work equipment

This case highlights the importance of ensuring that safety information required under health and safety legislation is provided by companies in order to discharge the risk of potential liability. This case is also instructive in conveying the manner in which the courts will analyse the appropriateness of sentences handed down to corporate offenders.

• Jason Milne is a partner in A&L Goodbody’s environmental and planning group.