As reported in our blog post of last week, Nolan Transport was recently fined €1 million euro by Wexford Circuit Court in February of this year in what is reported by the Health and Safety Review to be the largest health and safety fine imposed by an Irish Court when viewed relative to the size of the Company. We have referred to the Health and Safety Review of this case below as reported in this month’s edition. The Health and Safety Authority has also made reference to the fine on its website and also contains some useful information for those involved in workplace transport.
As reported by the Health and Safety Authority, the case arose following a joint investigation by them and An Garda Siochana into an accident causing the death of two members of the public and injuries to others, on a stretch of road at Stroan/Kilfane West, Thomastown County Kilkenny.
May Lonnergan and Vanessa McGarry were fatally injured on Thursday 19th July 2007 when the cars they were driving were struck by a load of metal coils being transported by Nolan Transport from Rosslare, County Wexford to Tegral Metal Forming Limited in Athy County Kildare. It appeared that there were six coils, each weighing about five tonnes and that they were loaded onto the trailer by an employee of a shipping company at a port in Wales and that only three of six straps were used to secure the load.
The Health and Safety Review reports that in giving evidence, Garda Sergeant Michelle Tierney told the court that upon approaching a bend in the road, the lorry and trailer crossed to the wrong side of the road and the strap holding the coils in place broke and one of the coils collided with a car killing the driver and injuring a passenger. It was also reported that another coil collided with a jeep and the lorry collided head on with another car killing the driver and injuring the passenger.
The truck and semi trailer were owned by Nolan Transport and the driver Rafal Luszacki was employed by Nolan Transport. At the time of the accident Mr Luszacki was driving at approximately 52kph and he was not charged with speeding or dangerous/careless driving.
It was reported that the Health and Safety Authority gave evidence that the Health and Safety Laboratory in the UK were commissioned to carry out a technical examination of the load involved in the accident and the HSA inspector gave evidence that the level of load restraint was grossly inadequate. She gave further evidence that an expert commissioned by the HSA determined that each coil should have been secured individually. She concluded in evidence by informing the court that a number of factors contributed to the accident on the day including the cradles utilised, coupled with the absence of an intermediate bulkhead and insufficient and deficient webbing straps.
Decision of the Court
As reported by the Health and Safety Review, Judge Raymond Fullam said the company had shown a “fragrant disregard” for safety and imposing sentence he noted that the aggravating factors were the loss of two lives and serious injuries to other people. The Judge also referred to mitigating factors which included the Company’s guilty plea and that the Company had taken steps to improve safety and driver safety. In imposing the fine the Court noted that it was mindful of the effect the €1m fine could have on innocent employees of the company and ordered the payment of the fine in three instalments and also offered the company to pay costs of €70,000.
In this case Nolan Transport pleaded guilty to a breach of Section 12 of the Safety Health and Welfare at Work Act 2005 contrary to Section 77(9).
Section 12 of the Safety Health and Welfare at Work Act 2005 (as amended) sets out the general duties of employers to persons other than their employees and provides
“Every employer shall manage and conduct his or her undertaking in such a way as to ensure, so far as is reasonably practicable, that in the course of the work being carried on, individuals at the place of work (not being his or her employees) are not exposed to risks to their safety, health or welfare”
Section 12 does not specify to whom the employer should have regard to however those engaged under a contract of services (i.e. contractors) and any member of the public are arguably included where such risks arise at the place of work which is defined extensively under Section 2 as
““………….any, or any part of any, place (whether or not within or forming part of a building or structure), land or other location at, in, upon or near which, work is carried on whether occasionally or otherwise and in particular includes— in relation to an extractive industry including exploration activity, the whole area intended to house workstations to which employees have access for the purpose of their work relating to the immediate and ancillary activities and installations of, as appropriate— the surface or, as the case may be, underground extractive industry, including overburden dumps and other tips and any accommodation that is provided and, in the case of the underground extractive industry, any working area, the extractive industry through drilling onshore including any accommodation that is provided, and the extractive industry through drilling offshore, including any accommodation that is provided, a tent, trailer, temporary structure or movable structure, and a vehicle, vessel or aircraft”
Section 77 of the Safety Health and Welfare at Work Act 2005 sets out the range of offences under the Act. Section 77(9) provides that:
(a) Subject to paragraph (b), if a person suffers any personal injury as a consequence of the contravention of any of the relevant statutory provisions by a person on whom a duty is imposed by sections 8 to 12 inclusive and 14 to 17 inclusive, the person on whom the duty is imposed commits an offence.
(b) A person does not commit an offence under paragraph (a)—
(i) if a prosecution against the person in respect of the act or default by which the personal injury was caused has been heard and dismissed before the personal injury occurred, or
(ii) in the case of personal injury excluding death, where that injury was not caused directly by the alleged contravention.
In essence Section 77(9) provides that (subject to exceptions in paragraph b), where a person suffers a personal injury as a result of breaches by a person who owes duties as set out in Sections 8-12 of the Act (general duties of an employer including duties to those other than employees, instruction, training and supervision of employees etc) and Sections 14 to 17 (general duties of persons in control of places of work and general duties of designers, manufacturers, importers and suppliers of articles and substances), that person who owes the duties has committed an offence.
This case is an extremely unfortunate reminder of the extensive health and safety obligations and duties which an employer owes to not only its employees but also to members of the public and others.