Donegal County Council v Health and Safety Authority

• Jurisdiction: Ireland
• Court: High Court
• Judge: Kearns P.
• Judgment Date: 09 July 2010
• Neutral Citation: [2010] IEHC 286
• Date: 09 July 2010

[2010] IEHC 286

THE HIGH COURT

263 JR/[2007]

Donegal County Council v Health & Safety Authority

JUDICIAL REVIEW

BETWEEN

DONEGAL COUNTY COUNCIL

APPLICANT

AND

THE HEALTH AND SAFETY AUTHORITY

RESPONDENT

SAFETY HEALTH & WELFARE AT WORK ACT 1989

CIVIL LIABLITY ACT 1961

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S34

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S77(2)(D)

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S2

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S34(1)(D)

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S62

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S64

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S70

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S72

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S82

CORK CO COUNCIL v HEALTH & SAFETY AUTHORITY & ORS UNREP HEDIGAN 7.10.2008 2008/8/1581 2008 IEHC 304

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S2

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S34(1)

SAFETY HEALTH & WORK (CONSTRUCTION) REGS 2001 SI 481/2001

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S66(1)

LOCAL GOVERNMENT

Roads

Health and safety - Investigation - Administrative body - Jurisdiction - Order of prohibition from further investigations - Newly tarred roadway - Fatal accident - Place of work - Fair procedures - Retrospective effect - Statutory interpretation - Whether accident locus place of work - Whether investigation ultra vires - Whether investigation into completed road works permitted - Whether road works still in progress - Whether respondent's jurisdiction extended to protection of road users - Whether investigation statute-barred - Whether investigation oppressive - Cork County Council v Health and Safety Authority [2008] IEHC 304 (Unrep, Hediagn J, 7/10/2008) followed - Health and Safety Act 1989 (No 7) - Safety, Health and Welfare at Work Act 2005 (No 10), ss 32, 34, 62, 64, 70, 72, 77 and 82 - Roads Act 1993 (No 14) - Interpretation Act 2005 (No 23) - Council Directive 89/391/EEC - Council Directive 92/383/EEC - Order granted (2007/263JR - Kearns P - 9/7/2010) [2010] IEHC 286

Donegal County Council v Health and Safety Authority

Facts: The applicant sought inter alia an Order of Prohibition to prevent the respondent from further investigating or prosecuting the applicant in respect of a road traffic accident in 2001. The workers in the employ of the applicants had been working on the road surface of the scene of a tragic accident. The applicant accepted that the section of the roadway covered with loose chippings was a place of work for the duration of the works in progress. The respondent investigated the accident and concluded that the accident was a "place of work" and that it had statutory jurisdiction to do so. In 2006, the respondent further investigated the incident, relying in s. 34 Health, Safety and Welfare at Work Act 2005. The issue arose as to the applicability of the Act of 2005.

Held by Kearns P. that a very close degree of proximity had to be established to justify any finding that would confer jurisdiction on the respondents when workers had actually left a worksite and had completed their functions there. The Court would make the Order of Prohibition sought in the case.

Reporter: E.F.

1 JUDGMENT of Kearns P. delivered on the 9th day of July, 2010.

2 In these proceedings the applicant seek an Order of Prohibition by way of application for judicial review to prevent the respondent from further investigating or prosecuting the applicant or its staff in respect of a road traffic accident which occurred on the 12 ^th June, 2001 at Dunross, Culdaff on the Malin/Culdaff Road, Inishowen, County Donegal.

3 Shortly after 8.00 p.m. on the evening of 12 ^th June, 2001 a tragic accident occurred at Dunross, Culdaff, County Donegal, when a grey Renault Clio driven by Sinead McDaid left the road and finished on its roof in a field on the left side of the road as one travels towards Culdaff. There was no other vehicle involved and the driver, Ms. Sinead McDaid, was thrown clear of the vehicle and sustained injuries from which she died later that night. She had been travelling alone at the time of the accident.

4 It is common case that workers in the employ of the applicants had been working on the road surface earlier that day. The section of roadway where the accident occurred had been newly tarred and covered over with loose chippings over a distance of approximately one mile. This work had ceased at around 11.00 a.m. and traffic control in the form of "follow me trucks" was in place until 3.00 p.m. at which point traffic control was removed and normal usage of the roadway was resumed. Loose chipping signs (slow - loose chippings - 20mph) remained in place at both ends of the works and in the middle thereof.

5 The accident was investigated by the Garda Síochána in 2001 and a number of statements were obtained. In particular statements were obtained from Ms. Serena McCallion and her brother-in-law, Gareth McCallion, who were themselves driving and who passed Ms. McDaid's car coming in the opposite direction shortly before the accident. Ms. McCallion confirmed that the road surface had been newly tarred with loose chippings for approximately one mile from Culdaff village towards Dunross. She also confirmed that there were three signs on the road indicating to drive slow at 20mph. Before exiting the newly tarred section of the roadway she met a silver Renault Clio coming in the opposite direction. As this car passed her car, a chipping from the road hit her car. She felt the oncoming car was travelling between 30mph - 40mph. As the car passed by, she looked in her rear view mirror and saw brake lights come on in this car which then left the road and she observed the rear of the car to rise up. In his statement, Mr. McCallion also heard chippings from the road make contact with their car and observed the car driven by Ms. McDaid. He observed it was travelling faster than their car. Garda Daniel Devlin came to the scene of the accident that evening and took measurements of the scene. He noted that there were a lot of loose stone chippings on the road which appeared to him to have been re-surfaced in the near past.

6 In his statement, Garda P. Moran stated that the field which the car entered is lower than the road surface by approximately 8 feet. He also stated that there was a brake mark on the road of 60 feet from the left wheel and 57 feet from the right wheel which went towards the grass verge where the Renault Clio made contact with the verge. He also stated that the newly tarred road surface with loose chippings commenced approximately 100 yards on the Malin side of where the Renault Clio first made contact with the grass margin. The evening was dry and bright at the time and the road was dry. He stated that there were two signs erected on either side of the road indicating "slow - loose chippings - 20mph" and these signs were erected 95 yards on the Malin side of where the newly tarred surface commenced. There were no road markings.

7 While the applicant accepts that the section of roadway which had been covered with loose chippings was a place of work for the duration of the works in progress, it contends that it ceased to be such when the workmen left the site at 11.00 a.m., notwithstanding that the free flow of traffic in both directions did not resume until 3.00 p.m. The applicant contends that the scene was not a place of work at the time of the accident at 8.10 p.m. The applicant did, however, concede on the second day of the hearing that workmen had returned to the scene of the accident the following day and had swept some chippings from the road surface. It appears also that some of the road signage may have been altered at that time. Any work undertaken on the following day by the applicant's workers did not involve placing road markings on the road surface.

8 The initial investigation undertaken by an Garda Siochana did not result in any prosecution being taken against any party but following representations made by the deceased's family and by local politicians on their behalf, the Garda Síochána undertook a further investigation into the circumstances surrounding the accident and eventually compiled a file which was sent to the office of the Director of Public Prosecutions to decide whether or not a criminal charge of reckless endangerment should be brought against any members or employees of the applicant herein. The Director decided that no such charge would be brought.

9 It appears that the information gathered by the Garda Síochána in respect of this more detailed investigation was shared with the respondent herein. The respondent had conducted some initial or preliminary investigations into the circumstances of the accident in 2001 as it was the view of the Authority the accident locus was a "place of work" and that that it had jurisdiction to do so under the Health and Safety Act, 1989.

10 In the meantime, the husband of the deceased brought civil proceedings against the applicants in the form of a fatal claim for compensation under the Civil Liability Act, 1961. Those proceedings were brought against the applicants and were subsequently compromised without admission of liability. The deceased's parents also mounted further civil proceedings claiming damages for nervous shock. They were strongly of the view that there had been a very serious dereliction of duty by the servants or agents of the applicants and were determined that some form of criminal charges would be brought against those who were responsible for the state of the roadway on the occasion when their daughter tragically met her death.

11 Ultimately in November, 2006, some five and a half years after the accident, the respondent decided to further investigate the matter, relying on this occasion on s.34 of the Safety, Health and Welfare at Work Act 2005...