The appellant company appealed against the severity of a €1 million fine imposed on it following its plea of guilty on the 18th December, 2012, at Wexford Circuit Court to an offence contrary to ss. 12 and 77(9) of the Safety, Health and Welfare at Work Act 2005.
The events which gave rise to the prosecution in this case occurred in July, 2007. The appellant, a major road haulage company, was both the owner and operator of a lorry and trailer which was transporting six steel coils weighing 25 tons, which were inadequately secured. As the lorry was approaching a bend in the road in Kilkenny at speed, the straps that were used to secure the load broke, and the six steel coils fell off the trailer. This resulted in the drivers of two motor cars travelling in the opposite direction being killed. Injuries were caused to four other people.
The appellant contended that the fine of €1 million was excessive and was entirely disproportionate given the level of culpability of the appellant as well as by reference to the decided cases. Counsel on behalf the appellant argued that, generally speaking, a seven figure fine was only imposed if there was a history of health and safety offences, or if there were particularly aggravating factors. The appellant also argued that the fine was disproportionate as the accident had been caused by the negligence of the driver rather than management, due to him driving at excessive speed, and failing to ensure that his load was properly secured.
The sentencing judge identified the aggravating factors as the two fatalities and the personal injuries to the four other victims. He held that the accident was clearly foreseeable with the significant risk of serious injury because of the dangerous manner in which the load was being transported. He identified the principle mitigating factors as: (i) the plea of guilty; (ii) the steps taken by the appellant company since the accident to significantly improve and update its health and safety practices; (iii) the fact that the appellant had no previous convictions under the Health and Safety Acts, and (iv) the apology by the managing director of the appellant company to the families of the deceased and to the injured.
Conscious of the possible adverse consequences for innocent employees of the appellant company by it having to pay a fine of €1 million in one go, the sentencing judge directed that the fine be paid over a three year period thereby having proper regard to the "the overspill factor".
The Court of Appeal dismissed the appeal. It found that that while the €1 million fine imposed was a significant one for the appellant company, it was a fine that was just and proportionate given the nature of the omissions and the harm caused. The Court held that the responsibility for the secure strapping of the load lay firmly with the appellant as both the owner of the vehicle and employer of the driver. The Court took the view that the omissions in this case were of a high order and all the more serious because they related to a core activity of the appellant’s business. It held that the sentencing judge was entitled to conclude that the omissions by the appellant amounted to a gross dereliction of the company’s statutory duty to persons not in its employment under s. 12 of the Act of 2005.
This decision highlights once again the importance of employers implementing safe systems of work and adhering to health and safety legislation. The maximum penalties under the Health and Safety at Work Act 2005 are €3 million and/or 2 years' imprisonment per offence, tried on indictment. The highest Irish health and safety fine to date is €2 million, which was imposed on Bus Eireann in 2008, following the Kentstown Bus crash in which five schoolgirls who were passengers on the bus were killed.
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