Director of Public Prosecutions v Kilsaran Concrete Limited  IECA 112
The respondent company Kilsaran Concrete Limited pleaded guilty to a charge of failing to manage and conduct work activities in such a way as to ensure the safety, health and welfare of its employees. The company was initially fined €125,000.
The charge arose out of a fatal accident in which an employee, Barry Gargan, was crushed by a moving arm that was part of a fully automated wet cast concrete production line. This piece of machinery was enclosed in a safety cage due to the risk posed by its moving parts. When used correctly, power to the machine was cut when the door to the safety cage was opened to ensure worker safety when people were in close proximity to the machine.
However in May/June 2011 Kilsaran received a large order for concrete kerbs. A decision was made to modify the wet cast production line. This modification involved overriding the safety features so employees were able to work inside the cage while the machine was on. As part of the overriding process, each morning an operator was required to manually disable an arm on the machine that was designed to pick up empty moulds and shift them onto the cleaning table as this was where the employees were stationed inside the safety cage.
On the day of the accident the operator forgot to disable the arm, and when Barry Gargan was instructed to work at the cleaning table inside the safety cage he was crushed by the descending arm.
The Director of Public Prosecutions (DPP) appealed the €125,000 fine on the grounds that it was unduly lenient and that the Circuit Court Judge had taken insufficient account of the aggravating factors of the case. The DPP’s submissions pointed to “the inherent and obvious danger presented by the system of work and the particular practice adopted in this case.” Supporting evidence included that of the most experienced operator in the plant who had expressed concerns over the safety of employees if they had to work in the safety cage but had been ignored; and evidence presented by a summer student who had been involved in a near miss incident in the same circumstances. The DPP also emphasised “the features of the case are indicative of an inherently dangerous system of work, involving the deliberate and conscious taking of an unjustified risk as opposed to an omission through negligence or inadvertence.”
The respondents accepted there was a breach and that it had led to very serious consequences but relied on case law supporting a wide discretion given to sentencing judges and argued the judge’s comprehensive initial analysis of the case pointed to the final sentence imposed as being fair, just and reasonable.
The Court of Appeal judges agreed with the DPP that the initial sentence was unduly lenient. In the judgment given by Justice Edwards, the court recognised there had been an egregious failure to maintain and enforce safety standards. Of particular concern to the appeal judges was that there was “a deliberate breach of the law to maximise profits [and a] conscious and deliberate discounting of safety concerns raised.” Furthermore the court found significant that “the impugned practices were not merely condoned, they were actively encouraged and, indeed, participation in them was required by a member of senior management in the respondent company.” It was also found to be concerning that over the 12 month period the modified kerb production was taking place, neither a safety audit nor the company’s safety officer picked up on the dangers of the practice and as a result the board of the company was unaware of what was going on.
In relation to the fine itself, although the judges did not discuss the company’s accounts, they did mention that the company had a substantial turnover and valuable assets. The appellate judges agreed with the applicant that the size of the initial fine failed to adequately address the need for deterrence: “The law breached in this case was designed to protect and promote public welfare … the respondent’s reckless disregard for safety in the pursuit of profit drove a coach and four through the policy of the legislature … [The original fine] was entirely inadequate to communicate the appropriate messages of punishment … and more importantly in terms of deterring the respondent and others from engaging in similar breaches and disregarding safety in the future.”
In terms of mitigating factors the appellate judges agreed with the Circuit Court judge that credit should be given for the company’s early guilty plea, remorse, corrective measures taken, co-operation in the investigation and its previous good safety record.
A new fine of €2,000,000 was imposed (the maximum fine is set at €3,000,000) with a 50% reduction for mitigating factors. The increase of €875,000 resulted in a replacement fine of €1,000,000.
Brad Alcorn, Senior Associate at Fee Langstone says “The Health and Safety at Work Act 2015 (which commenced on 4 April 2016) introduced revised penalty provisions for health and safety breaches in New Zealand. Broadly this involves a six fold increase in the level of fines that may be imposed on an offender. The maximum fine, for reckless breach – which would apply to the circumstances of the above case – is $3m for a PCBU, or smaller for officers or workers, but with the added penalty of a potential prison term. It should be expected that fines of the magnitude in Kilsaran Concrete will become likely in New Zealand, particularly in situations involving such deliberate disregard of safety protocols.”