Defending A Health & Safety Prosecution - A Lighter Burden

Author:Ms Susan Bryson
Profession:Mason Hayes & Curran

The decision of the Irish Court of Criminal Appeal (CCA) in DPP v PJ Carey (Contractors) Limited (18th October, 2011) represents a positive development for companies defending prosecutions for serious health and safety offences in Ireland. The case sets down several principles which operate where the prosecution fail to submit sufficient evidence to the court to prove that there has been a breach of relevant health and safety legislation.

The jury in the case found the defendant, PJ Carey (Contractors) Limited, guilty under Section 6.1 of the Safety, Health and Welfare at Work Act 1989 of failing to provide a system of work that was planned, organised, performed and maintained so as to be, as far as reasonably practicable, safe and without a risk to health. The case concerned a fatality which occurred at a site which the defendant operated. An employee of the defendant entered an open trench which subsequently collapsed, killing him. Upon conviction the defendant appealed.

Justice Hardiman, giving the judgment of the CCA, stated that the prosecution established that the "golden rule" on the defendant's site was that no person should enter an unprotected trench. The deceased had recently received a stern reprimand for entering such a trench and received a specific warning on the day of the incident in question. Furthermore, the judge noted that the state did not retain an expert witness to comment on the system of work. The only independent expert heard at trial said that there was a strong health and safety ethos on-site and the system of work was as far as reasonably practicable safe and without risk. The prosecution did not provide any witnesses to dispute this view.

The prosecution tried to argue that the doctrine of res ipsa loquitor , i.e. the facts speak for themselves, applied. This argument means that since the employee died in an open trench that fact, in and of itself, was sufficient proof of there not being a safe system of work in place. However, Hardiman J rejected the argument, saying that the mere fact that an employee died could never support a serious criminal conviction.

The prosecution also attempted to rely on Section 50 of the Safety, Health and Welfare at Work Act 1989, now re-enacted in Section 81 of the Safety, Health and Welfare at Work Act 2005. This section reverses the burden of proof in health and safety cases such that: shall be for the accused to prove (as the case may be) that it was not practicable...

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