DPP v Kilsaran Concrete Ltd

JurisdictionIreland
JudgeMr Justice Edwards
Judgment Date06 April 2017
Neutral Citation[2017] IECA 112
CourtCourt of Appeal (Ireland)
Docket NumberRecord No : CJA 73/16,[C.A. No. 73 of 2016]
Date06 April 2017

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
V
KILSARAN CONCRETE LIMITED
Respondent

[2017] IECA 112

Edwards J.

Birmingham J.

Edwards J.

Hedigan J.

Record No : CJA 73/16

THE COURT OF APPEAL

Sentencing – Failure to manage and conduct work activities in such a way as to ensure the safety, health and welfare at work of the employees of an undertaking – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient

Facts: The respondent, Kilsaran Concrete Ltd, on the 18th of February 2016, having pleaded guilty to a count of failing to manage and conduct work activities in such a way as to ensure, so far as was reasonably practicable, the safety, health and welfare at work of the employees of an undertaking, resulting in personal injury to an employee, contrary to s. 8(2)(a) as it relates to s. 8(1) and s. 77(9)(a) of the Safety, Health and Welfare at Work Act 2005, was ordered to pay a fine of €125,000 with six months to pay, and distress in default. The charge arose out of an industrial accident which resulted in the death of Mr Gargan on the 6th of September 2011. The applicant, the DPP, appealed to the Court of Appeal seeking a review of the sentence imposed on the grounds that it was unduly lenient. The applicant submitted that insufficient account was taken of a number of aggravating features in the case. The applicant also contended that too much credit was given for alleged mitigation in this case, and that a number of factors were taken into account as mitigation which were not in fact mitigating. It was also argued on behalf of the applicant that the sentencing judge had erred in law in imposing a fine which either had no regard to, or alternatively paid insufficient regard to, the financial position of the respondent company and its ability to pay.

Held by the Court that the sentence in this case was unduly lenient as being a clear departure from the norm, and one caused by the several errors of principle. In the circumstances the Court quashed the sentence imposed in the court below and proceeded to resentence the respondent.

The Court held that the gravity of the case, considered with reference to the range of punishments set by the Oireachtas, and having regard to the respondent’s very significant culpability and the substantial harm done, merited a headline sentence involving a fine of €2,000,000. The Court also allowed a 50% discount for the mitigating factors in the case; the final sentence therefore was a fine of €1,000,000.

Appeal allowed.

Judgment of the Court delivered by Mr Justice Edwards on 6th April 2017
Introduction
1

On the 18th of February 2016 the respondent, having pleaded guilty to a count of failing to manage and conduct work activities in such a way as to ensure, so far as was reasonably practicable, the safety, health and welfare at work of the employees of an undertaking, resulting in personal injury to an employee, contrary to Section 8(2)(a) as it relates to Section 8(1) of the Safety, Health and Welfare at Work Act, 2005 and Section 77(9)(a) of the Safety, Health and Welfare at Work Act 2005, was ordered to pay a fine of €125,000 with six months to pay, and distress in default. The charge arose out of an industrial accident which resulted in the death of Barry Gargan on the 6th of September 2011.

2

The director now seeks a review of the sentence imposed on the grounds that it was unduly lenient.

The Circumstances of the Case
3

The respondent is a limited liability company engaged in the business of manufacturing concrete products such as building blocks and paving stones. It operates from premises at Piercetown, Dunboyne, County Meath, incorporating a quarry and manufacturing facility, and employs approximately 400 people.

4

About 16 months prior to the incident, the respondent purchased a fully automated piece of machinery (the ‘wet cast production line’) for the manufacture of pre-cast and standardised concrete products. The machine uses standardised moulds. The process starts with an empty mould. While moving along a conveyor the mould is filled with liquid concrete and then levelled off. It is then put onto a drying rack until the product hardens. It is later retrieved from the drying rack, a suction device removes the dried product from the mould, the finished concrete product is removed, the empty mould is then lifted by a mechanical arm and moved on to an adjacent vibrating table where any dried concrete remnants are shaken from the mould in a cleaning process, the cleaned mould is then removed and ultimately returns by conveyor to the filling line, where the process starts all over again.

5

When this machine is in use for the purpose for which it was designed, at no point in the manufacturing process is manual intervention necessary and the process is controlled externally by an operative using a control panel and a second individual carrying out a visual examination of the finished product.

6

The wet cast production line is enclosed within a safety cage to prevent access to the unguarded moving parts, and access to the caged area is controlled by a safety gate, the opening of which cuts off power to the machine.

7

A decision was made to use the wet-cast production line in an unorthodox manner to make bespoke products, ie., so-called Ballymun and Limerick kerbs, which were too big to be produced with the machine in automatic mode and which required the use of custom made wooden moulds, which could not be shaken or automatically cleaned.

8

The use of the wet cast production line for the manufacture of ‘Ballymun kerbs’ or ‘Limerick kerbs’ developed over a number of distinct phases.

9

The respondent received an order for Limerick kerbs in August 2010 and these were initially manufactured entirely by hand, using a custom made mould filled by bucket with wet concrete.

10

Due to the labour intensive and slow nature of this process, it was decided to use the wet cast production line in the manufacturing process as follows:

a) The door of the safety cage would be opened and left open.

b) The moulds would be individually brought into the safety cage and placed on the conveyor belt immediately before the dosing station.

c) The operative would leave the safety cage, closing the door behind him. The mould would be filled and taken to the drying area.

d) The process would be repeated.

11

The process would continue to completion.

12

The following day the process would be reversed as follows:

a) The mould is delivered from the drying area.

b) Two operatives would enter, leaving the safety door open and manually remove and disassemble the mould.

c) The two operatives would exit, with the disassembled mould, closing the door behind them.

d) The process would re-start.

13

In May/June of 2011, the respondent received a large order for Ballymun kerbs, and at some point a decision was made to leave the operatives inside the safety cage during the de-moulding process, with the broken down moulds being passed over the safety cage for reassembly. While this lead to an improvement in production speed, it remained slow as the moulds were being reassembled outside and therefore could not be fed back into the production line on a constant basis.

14

To address this shortcoming a decision was made to reassemble the moulds inside the safety cage. As there were no workstations inside the safety cage, the cleaning or vibrating table was used to re-assemble the mould, as it was the only flat surface available. In the normal way, a mechanical arm placed moulds onto the vibrating table for cleaning on a continuous basis and consequently this had to be overridden and shut off to allow the vibrating table to be used to re-assemble the moulds.

15

As the wet cast production line was only used to make Ballymun kerbs in the morning and had to be left in automatic mode at the end of the shift in the evening to complete the cleaning cycle, the operator at the control panel was required to disable the cleaning arm before commencing work in the morning.

16

On the morning of the 6th of September 2011, the operator at the control panel forgot to disable the cleaning arm. The deceased, Mr.. Barry Gargan, and a colleague entered the safety cage as normal and when the deceased commenced reassembling the mould on the vibrating table, the cleaning arm descended, crushing him and killing him instantly.

17

A statement from Mr.. Phelim Tierney, a student who had been working at the plant over the summer, told the court that he had earlier been involved in a ‘near miss’ incident involving the same procedure, in which he was almost killed.

18

Christ Bagnall, the most experienced operative at the plant, said in a statement which was read to the Court that he had previously expressed concerns over the safety of this particular procedure, stating:

‘The old process of manually pouring kerbs was deemed too slow. Carl asked my opinion about using the wet cast plant to manufacture the kerbs but I told him, “It's nothing to do with me. You're the boss.” When Carl explained the proposed procedure to me, which included having two men inside the safety zone to de mould the kerb, I told him I wasn't happy with this as it was not the safest way of doing it.’

19

The ‘Carl’ referred to was Mr.. Carl Griffin, a production engineer employed by the respondent at the time, and the person within the respondent's company who had instigated the unorthodox procedure just described. Mr.. Bagnall indicated that notwithstanding the concerns that he had raised with Mr. Griffin concerning the safety of the proposed procedure, Mr. Griffin insisted that that procedure should nonetheless be used.

20

Mr. Griffin was co-accused with the respondent company. He also...

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