The Court of Criminal Appeal has set aside the conviction of P.J. Carey (Contractors) Limited for failing to provide a safe system of work after a worker was killed in a trench collapse in 2002. It ruled that the prosecution had not established a prima facie case that the system was unsafe and declined to order a retrial.
The judgment, delivered by Mr Justice Hardiman on 17 October 2011, concerned the company’s application for leave to appeal its conviction on Count 2 under the Safety, Health and Welfare at Work Act 1989. The company had been acquitted on Count 1. Counts 4 and 5 were withdrawn by the trial judge, and the prosecution later withdrew Count 3.
Count 2 alleged that the company failed, so far as reasonably practicable, to ensure employees’ safety by not providing a safely planned, organised, performed and maintained system of work. The charge arose from the death of employee Brendan Colton, an experienced pipe layer, at a Ballymun Road work site in Dublin on 9 December 2002.
The judgment recounts that Colton entered a trench before a protective trench box was installed, and the trench collapsed. The prosecution evidence described a site rule against entering unprotected trenches, and warnings given to Colton, including one on the day of the incident. The court noted that the charge did not itself require proof of a death or injury, and questioned the trial judge’s view that the fatality was probative of a failure to provide a safe system.
At trial, the company argued there was no case to answer. Its counsel said the prosecution witnesses present at the site supported the company’s arrangements, including its excavation precautions and trench box, and that no prosecution expert had criticised the system. The prosecution argued that the collapse spoke for itself and relied on section 50 of the 1989 Act, which addresses the burden concerning what was reasonably practicable.
The appeal court held that section 50 imposed only an evidential burden, and only after the prosecution established a prima facie case that the work system was unsafe. It found the trial judge had instead treated the section as placing a substantive burden on the company to explain its choices. The appeal court said that was an error of law; the prosecution evidence had not established the required prima facie case.
The court allowed the appeal and set aside the Count 2 conviction. It did not order a retrial, having regard to the evidence at trial. It said the other appeal points did not need to be addressed.