Health and Safety Law update – 18 month suspended sentence for roofing contractor – no fall protection mechanism in place

Unfortunately workplace accidents are all too common and this months’s health and safety law review only confirms this unfortunate position.The case of DPP for HSA v Patrick Rooney: Circuit Court Dublin, June 2012 arose as a result of an accident in July 2007 on a farm in North Dublin.. The owner of the farm engaged the services of a roofing contractor to remove an asbestos roof from a 1,000 metre shed and replace it with new Kingspan roof panels.Giving evidence at the hearing, Health and Safety Inspector Mairead Wall explained to the court the nature of the workplace and the work to be carried out. When on the roof the workers cut the old asbestos roof which was loaded onto pallets and lifted down from the roof by a teleporter.On the day of the accident, one of the injured workers, a carpenter, walked across the fragile old asbestos roofing to get to the site of the work, the sheeting gave way and he and another worker fell to the ground. The court heard through a victim impact statement that the carpenter had been in and out of hospital for two years and could no longer do roofing work. The other worker suffered severe fractures and facial injuries and had been in a wheelchair for a considerable period. The HSA inspector confirmed that “there was no fall protection mechanism in place”. She stated that the roofer could have had a proper working platform and scaffolding or an alternative method of preventing a fall would have been to attach netting to the purlins or a mobile elevated work platform.Initial Hearing and SentenceAt the initial hearing (the original judge eventually recused himself from giving judgement), Judge McDonagh rejected the Roofer’s legal argument that the company that owned the shed (and not the roofer) was the legal employer of the two men. The roofer subsequently changed his plea to guilty on two charges:1. Failure to provide a system of work that was planned, organised and performed as appropriate so as to be, in so far as reasonably practicable, safe and without risk to health (Section 8.2.e of the Safety Health and Welfare at Work Act 2005).2. Failure to take suitable and sufficient measures to prevent employees falling a distance liable to cause personal injury (Construction Regulations 2006, reg. 5.3)In imposing sentence Judge Nolan stated that the roofer was a “good young man” but added that someone with rudimentary health and safety training would have realised the dangers”. In describing the way the roofer did the job as “old fashioned“, the Judge stated that it was “foolhardy and reckless”. As everyone was in a hurry to get the job done “as cheaply as possible” the risks were not considered.The Judge noted that it would “probably be “unjust” to send the roofer to prison, he imposed an 18 month suspended sentence and bound the roofer to keep the peace and be of good behaviour for 18 months. The roofer was required to enter into a bond of €100 (given his financial circumstances) and he was ordered to pay the DPP costs of €14,237 and the HSA expenses of €9,448 with a year to discharge same.Of interest to note in this case are the obiter dictum comments of Judge Nolan concerning client duties under the Construction Regulations. In the course of cross-examination at the initial hearing, the roofer’s counsel, Mr. Fleming raised an issue about the duty of the company as the client under the Construction Regulations, to appoint a project supervisor for design and construction stages. Ultimately the company supplied the materials used to re-roof the shed and owned the teleporter which was operated by one of the roofer’s workers. The worker did not hold a CSCS card to operate the teleporter. Although the judge stated that he did “not see how the duties of other parties help your client”, it is clear that he equally noted Mr. Fleming’s comments about client duties.