Sentencing in fatal accident health and safety cases: is €1m the current default position?
Sentencing in fatal accident health and safety cases: is €1m the current default position?
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 decision of the Court of Appeal on 6 April 2017 in DPP v Kilsaran Concrete Ltd.
The Kilsaran case concerned an appeal by the DPP against what it saw as the overly lenient fine of €125,000 imposed on Kilsaran Concrete Ltd 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 product more quickly.
Kilsaran, had one previous health and safety offence in 2006 (arising from a serious quarry accident where an operator fell from a working platform and received serious injuries), resulting in Kilsaran being fined €100,000. In this case however, the company was charged with breaches of s.8(2)(a) and s.77(9)(a) of the Safety, Health and Welfare at Work Act 2005 (the 2005 Act). 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 €3mcurrently.
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". Edwards J, (delivering the judgment of the Court of Appeal), referred to previous court decisions including Roseberry Construction Ltd, Oran Precast Concrete, O'Flynn Construction Co. Ltd, 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 €2m. We will allow a 50% discount for the mitigating factors in the case. The final sentence therefore will be a fine of €1m ".
The previous conviction of Kilsaran was also taken into account.
A fine of €1,m is the same level that was imposed on appeal in DPP v Roadteam Logistics Solutions in 2016. That case involved inadequately secured cables falling off a truck, resulting in the deaths of two individuals and personal injury to four additional people, albeit that case involved no evidence of deliberate action for financial gain. From these recent cases, one would question whether €1m is the default position for sentencing in fatal accident health and safety cases. Having said that, in a subsequent prosecution also against Kilsaran in November 2017, the Circuit Court imposed a fine of €125,000 relative to a serious injury suffered by an employee. The employee had the four fingers of his left hand amputated while he was cleaning the dosing section of a machine involved in the manufacturing of concrete products. The HSA's investigation found that there was no safe system of work in place for the cleaning of the machine involved in the accident.
Other recent health and safety cases which offer guidance on sentencing
In March 2017, Aer Lingus were fined €250,000 following the death of a cargo driver at the airport. The Court found that there had been a failure to ensure that adequate measures were in place to protect people from the risk of a fall from height and that there was a failure to implement the company's written procedures dealing with driver access to loading bays. In imposing this fine, Nolan J noted that the maximum fine applicable for this offence was €3m. However, having regard to Aer Lingus' good record, its early guilty plea and apology to the deceased's family and the measures it introduced to prevent a recurrence of such an accident, he considered a fine of €250,000 to be appropriate.
Although DPP v East Coast Kitchens Factory Ltd (October 2017) did not concern a fatality, it gives a useful insight into the factors which will influence a judge's decision when imposing a fine. In this case, a kitchen manufacturing company, which pleaded guilty to charges of failing to provide a safe system of work, was fined €5,000 by the Circuit Criminal Court. The employee was cutting lengths of chipboard for kitchen products and was using an Altendorf F45 sliding table saw at the time of the accident. A report was produced by a mechanical engineer which found that (a) the guard on the table saw was broken and not functioning properly (b) the automatic self-adjusting height mechanism of the tool was not working properly and (c) the Perspex side pieces of the saw guard were fractured and damaged as a result of repeated contact with the blade. In imposing a fine of €5,000 and the prosecution’s costs of €4,731, O'Connor J considered a number of factors including: the company's full co-operation with the HSA investigation; its compliance history (this was an isolated incident and no other health and safety breaches had been observed in the past); and the constructive response to this accident (i.e. putting in place a stringent health and safety system to ensure the future avoidance of a similar incident).
DPP v Knauf (October 2017) concerned a fatality to a worker who was visiting a supplier's premises. O'Connor J imposed a fine of €40,000 on a company that pleaded guilty to a charge under s.12 of the 2005 Act. This provision imposes a general duty on employers to manage and conduct their activities in such a way as to ensure, in so far as reasonably practicable, that in the course of work, individuals, not being employees, are not exposed to risks to their safety. In this case, a worker collecting materials from a supplier’s premises was killed in an accident involving a forklift. Dublin Circuit Criminal Court heard that although rules were in place in relation to visitor safety, these were not adhered to. Regular visitors reported that they were never given any written on-site procedures and the HSA inspector found there was no traffic management in place in the yard to allow for the safe circulation of traffic and pedestrians. In imposing the €40,000 fine (and the DPP's costs of €2,000 and the HSA's costs of €984), O'Connor J had regard to the company's positive compliance record in the past, their full co-operation with the HSA and the comprehensive review it had undertaken. The judge emphasised the need for every company to be vigilant in relation to its employees and others attending at their premises and noted that it only takes a “split second” for a fatality to occur.
As O'Connor J correctly noted, accidents can occur in a split second. It is therefore vital for companies to ensure that they continually assess and monitor safety procedures in their workplace. It should always be remembered that the management of health and safety is an on-going process that must reflect the risks and dangers, specific to each particular workplace.
Please click here to access a copy of the Court of Appeal decision: DPP v Kilsaran Concrete Ltd.
Date Published: 14 February 2018