Kerry County Council v The Health and Safety Authority

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 11 April 2013
• Neutral Citation: [2013] IEHC 140
• Court: High Court
• Date: 11 April 2013

[2013] IEHC 140

THE HIGH COURT

[No. 9135 JR/2012]

Kerry Co Council v Health & Safety Authority (HSA)

JUDICIAL REVIEW

BETWEEN

KERRY COUNTY COUNCIL

APPLICANT

AND

THE HEALTH AND SAFETY AUTHORITY

RESPONDENT

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S2

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S13

DONEGAL CO COUNCIL v HEALTH & SAFETY AUTHORITY UNREP KEARNS 9.7.2010 2010/12/2954 2010 IEHC 286

SAFETY HEALTH & WELFARE AT WORK (CONSTRUCTION) REGS 2006 SI 504/2006

SAFETY HEALTH & WELFARE AT WORK (CONSTRUCTION) REGS 2006 SI 504/2006 REG 10

SAFETY HEALTH & WELFARE AT WORK (CONSTRUCTION) REGS 2006 SI 504/2006 REG 22

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S34

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S12

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S64

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S58

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

EEC DIR 319/1989

EEC DIR 383/1991

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S66

HEALTH AND SAFETY LAW

Accident at work

Application for judicial review - Application to prevent respondent from further investigating applicant regarding fatal road accident - Local authority - Collision with traffic island and cones outside working hours - Purpose of health and safety legislation - Definition of âÇÿplace of work' - Cork County Council v Health and Safety Authority [2008] IEHC 304, (Unrep, Hedigan J, 7/10/2008) and Donegal County Council v Health and Safety Authority [2010] IEHC 286, (Unrep, Kearns P, 9/7/2010) considered - Safety Health and Welfare at Work Act 2005 (No 10), ss 2, 34, 58, 64 and 66 - Safety, Health and Welfare at Work (Construction) Regulations 2006 (SI 504/2006), regs 10, 12, 16, 22 and 30 - Relief refused (2012/9135JR - Kearns P - 11/4/2013) [2013] IEHC 140

Kerry County Council v Health and Safety Authority

Facts The respondent had intended investigating the site of a fatal road accident which had occurred at a place where the applicant (the local authority) had commenced construction works for a period of some twenty weeks. The accident had occurred on a weekend when the applicant”s workers had finished working on the site for the weekend and a traffic management plan had been put in place. The applicant contended that the respondent had no authority to investigate the accident locus as it was not a ‘place of work’ and brought judicial review proceedings to stop the investigation. It was the contention of the applicant that while the relevant section of roadway was a place of work for the duration of the works in progress, it ceased to be such when the workmen left the site on the Friday afternoon and the roadway was re-opened to the public.

Held by Kearns J in refusing the relief sought: All the documentation made clear that the road works were intended to last over a period of some 20 weeks and had merely been suspended for the weekend when the accident occurred. The Safety, Health and Welfare at Work (Construction) Regulations, 2001 defined a project as an activity which included or was intended to include construction work and the court was satisfied that a project was being undertaken by the applicant at the locus of the accident. There was no question the workers having left the work site or having completed their functions there. The situation might be different if the works had been suspended for a period of weeks or months but this did not apply where work was merely suspended for the weekend and plant and machinery had remained at the site.

1 JUDGMENT of Kearns P. delivered the 11th day of April, 2013.

2 In these proceedings the applicant seeks various reliefs by way of an application for judicial review to prevent the respondent from further investigating the applicant in respect of a fatal road accident which occurred on Saturday, 29 ^th September, 2012 on the N72 roadway in Rathmore, County Kerry.

3 The applicant is a local authority within the meaning of the Local Government Acts 1925 - 2012 and, as such, is responsible for the maintenance and improvement of national, regional and local roads within the County of Kerry. The applicant commenced construction works on the N72 in Rathmore on 13 ^th August, 2012 for the purposes of installing traffic calming measures. The said works were scheduled to last some 20 weeks. However, on the afternoon of Friday 28 ^th September, 2012, a traffic management plan was put into operation for the weekend during which work would not be taking place. This involved re-opening the road to two-way traffic, albeit that the roadway remained dressed with cones and other insignia indicative that road works were taking place. In particular there were cones located to the front of a traffic island under construction in the middle of the roadway. It was into this traffic island and cones that the driver of a vehicle collided shortly before 10.00pm on the evening in question, causing him to lose control of the vehicle which left the roadway, overturned and caused the driver fatal injuries.

4 The respondent was notified by the applicant of the accident on 1 ^st October, 2012 and an inspector from the respondent carried out an inspection at the site on the same date. On 2 ^rd October, 2012 the applicant was notified by the respondent of its intention to carry out an investigation into the accident. The applicant's position is that the respondent has no authority to investigate the accident locus as it is not a "place of work" and, in circumstances where the respondent refuses to accept that contention, sought leave to bring an application by way of judicial review which was granted on 5 ^th November, 2012 whereupon the respondent's investigation was stayed pending the outcome of the proceedings.

5 The core issue in these proceedings is thus a very net one, being one which has arisen in a number of cases, and it is whether the location of the accident was a place of work at the time of the accident. Both sides accept, of course, that if the location of the accident was not a place of work then the respondent does not have jurisdiction to investigate the accident.

SUBMISSIONS OF THE APPLICANT

6 On behalf of the applicant it was submitted that while undoubtedly the relevant section of roadway was a place of work for the duration of the works in progress, it ceased to be such when the workmen left the site on the Friday afternoon, because the works were shut down and the roadway was re-opened to the public. There were no employees of the applicant working at the accident locus at the time of the accident. The working hours traffic management arrangement, manually controlled by a flag man, had been deactivated. The barrier protecting the working area and cones defining the traffic route had been removed from the carriageway. A line of retro-reflective traffic cones had been installed on each side of the central island of the traffic calming gateway to guide traffic safely through the gateway. A similar line of traffic cones was also installed at the side island on the left-hand side of the road when leaving the village in the direction of Cork. The site was locked and two JCB vehicles had been deactivated.

7 It was submitted that The Safety, Health and Welfare at Work Act 2005 (hereinafter referred to as "the Act of 2005") has as its core purpose the protection of workers. It applies to and places duties on all employers, self-employed persons and employees in all places of work. Importantly, "accident" is defined in s. 2 of the Act of 2005 as meaning "an accident arising out of or in the course of employment which, in the case of a person carrying out work, results in personal injury". This would suggest that the definition of "accident" does not ordinarily include an accident involving a third party motorist, such as in the present case, given that the third party motorist was driving on a public road at the time of the accident in question. The various obligations under the Act of 2005 focus on the duties of persons in control of places of work and are all designed to ensure the safety, health and welfare of persons at work at places of work.

8 It was further contended that the respondent is not the correct person to investigate or to take any other action arising out of a road traffic accident of the sort involved in the instant case. Even if the applicant had been at fault, which is denied, multiple appropriate remedies are available, including civil remedies in the form of a fatal claim for compensation under the Civil Liability Act 1961 (as amended) or a criminal prosecution under s. 13 of the Non-Fatal Offences Against the Person Act 1997. An Garda Síochána is, it was suggested, a more suitable agency for the investigation of the manner of driving, the driver's physical and mental state, and other matters which would not be within the respondent's remit. Furthermore, coroners have legal responsibility for the investigation of sudden and unexplained deaths including accidents also.

SUBMISSIONS OF THE RESPONDENT

9 On behalf of the respondent, it was submitted that in the case of the works in question at Rathmore, County Kerry, the same had been in progress for some three weeks prior to the fatal accident and were planned to continue for some 17 weeks after that date. The applicant was due to continue works from Monday, 1 ^st October, 2012 after the weekend of the fatal collision. Accordingly, there was no question in the instant case of the works having been completed, a situation which had proved decisive in Donegal County Council v. Health and Safety Authority [2010] I.E.H.C. 286. On the contrary, it had been confirmed to servants or agents of the respondent by...