The Court of Appeal has quashed a €125,000 fine imposed on Kilsaran Concrete Limited after a workplace safety breach that killed employee Barry Gargan, and resentenced the company to pay €1 million.
The judgment, delivered by Mr Justice Edwards on 6 April 2017, followed an application by the Director of Public Prosecutions (DPP) to review the sentence as unduly lenient. The company had pleaded guilty in February 2016 to failing to manage and conduct work activities so as to ensure employees’ safety, health and welfare, so far as reasonably practicable. The offence was under the Safety, Health and Welfare at Work Act 2005.
The fatal accident happened on 6 September 2011 at the company’s concrete manufacturing facility in Piercetown, Dunboyne, County Meath. The court said the company had adapted an automated production line to make bespoke kerbs. Workers entered the machine’s safety cage to dismantle and reassemble moulds, using a vibrating table for the work. On the morning of the accident, the cleaning arm had not been disabled. It descended while Gargan was reassembling a mould, crushing him.
In its review, the DPP argued that the work practice created an obvious and continuing danger, developed over more than a year, and was adopted to speed production. The court accepted that the company’s culpability was “very high indeed”. It found that safety concerns raised by an experienced worker and an earlier near miss had been disregarded, and that the unsafe practices were actively encouraged and required by a member of senior management. The court noted there was no suggestion that the company’s board knew of the practices.
The judges held that the original sentence did not adequately reflect the gravity of the breach and that compensation paid to the family and other claimants should not have been treated as mitigation in the circumstances. The payments had caused no significant hardship to the company. The court did, however, allow for the guilty plea, cooperation with the investigation, remorse, remedial steps and the company’s generally good safety record.
The court assessed a headline fine of €2 million and applied a 50% reduction for mitigation, resulting in a €1 million fine. It said the earlier €125,000 penalty was inadequate for punishment and deterrence, and concluded that the sentence was unduly lenient because of errors of principle.
The court said it would hear further submissions on prosecution costs. It drew attention to a provision of the 2005 Act concerning costs and expenses, but made no costs order in this judgment.