FIRM FINED €1M AF­TER DEATH OF LO­CAL MAN

Barry Gar­gan died in con­crete plant ac­ci­dent

Drogheda Independent - - FRONT PAGE -

A CON­CRETE prod­ucts man­u­fac­turer, who showed a ‘reck­less dis­re­gard for safety in the pur­suit of profit’, has had their fine for an in­ci­dent in which a lo­cal man was killed in­creased to €1 mil­lion by the Court of Ap­peal.

Kil­saran Con­crete, with an ad­dress at Pierce­town, Dun­boyne Co Meath, had pleaded guilty to fail­ing to man­age and con­duct work ac­tiv­i­ties in such a way to en­sure the safety, health and wel­fare at work of em­ploy­ees at its plant in Pierce­town in Septem­ber 2011.

Barry Gar­gan (28), a na­tive of Clogher­head, died in­stantly when a clean­ing arm de­scended, crush­ing him, inside the safety cage of a ma­chine at the com­pany’s plant in Co Meath.

Kil­saran Con­crete was fined €125,000 by Judge Michael O’Shea at Trim Cir­cuit Crim­i­nal Court on Fe­bru­ary 18, 2016.

The Di­rec­tor of Pub­lic Prose­cu­tions sought a re­view of the fine on grounds that it was ‘un­duly le­nient’, and the case sub­se­quently went to the Court of Ap­peal. Kil­saran Con­crete was de­scribed in court as a ‘sub­stan­tial en­tity with very sig­nif­i­cant as­sets and turnover’.

A CON­CRETE prod­ucts man­u­fac­turer, who showed a “reck­less dis­re­gard for safety in the pur­suit of profit” has had their fine for an in­ci­dent in which a worker was killed in­creased to €1 mil­lion by the Court of Ap­peal.

Kil­saran Con­crete, with an ad­dress at Pierce­town, Dun­boyne Co Meath, had pleaded guilty to fail­ing to man­age and con­duct work ac­tiv­i­ties in such a way to en­sure the safety, health and wel­fare at work of em­ploy­ees at its plant in Pierce­town in Septem­ber 2011.

Barry Gar­gan (28), a na­tive of Clogher­head, was in­stantly killed when a clean­ing arm de­scended, crush­ing him, inside the safety cage of a ma­chine at the com­pany’s plant in Co Meath.

Kil­saran Con­crete was fined €125,000 by Judge Michael O’Shea at Trim Cir­cuit Crim­i­nal Court on Fe­bru­ary 18, 2016.

The Di­rec­tor of Pub­lic Prose­cu­tions sought a re­view of the fine on grounds that it was “un­duly le­nient”. The three-judge Court of Ap­peal agreed and in­creased it to €1mil­lion last week.

In bring­ing the DPP’s ap­pli­ca­tion, bar­ris­ter Carl Hana­hoe said the wet cast ma­chine in ques­tion was de­signed to pro­duce “stan­dard­ised” curb­ing stones but a very size­able or­der for “be­spoke” con­crete slabs was re­ceived in re­spect of re­gen­er­a­tion projects in Lim­er­ick and Bal­ly­mun.

Mr Hana­hoe said it was de­cided to use the wet cast pro­duc­tion line in a “semi-au­to­mated way” to pro­duce be­spoke con­crete slabs and there was a “de­lib­er­ate over­rid­ing of safety fea­tures” as­so­ci­ated with this piece of ma­chin­ery.

It was the pros­e­cu­tion’s case that there was an “in­cre­men­tal at­tempt to in­crease ef­fi­ciency” and by each step the dan­ger pre­sented to em­ploy­ees in­creased sig­nif­i­cantly.

Even­tu­ally, he said, em­ploy­ees were on ei­ther side of the con­veyor belt inside the safety barrier or cage, the whole pur­pose of which was to keep peo­ple out.

Mr Hana­hoe said ef­fi­ciency was be­ing achieved by the sys­tem which was be­ing adopted and there was noth­ing to sep­a­rate ef­fi­ciency from fi­nan­cial profit. That was an ag­gra­vat­ing fac­tor, he sub­mit­ted.

Giv­ing judg­ment, Mr Jus­tice John Edwards said the of­fence in­volved an egre­gious fail­ure to main­tain or en­force safety stan­dards, re­sult­ing in a fa­tal­ity.

He said there had been a de­lib­er­ate breach of the law in or­der to max­imise prof­its. There was a con­scious and de­lib­er­ate dis­count­ing of safety con­cerns raised by an ex­pe­ri­enced em­ployee and a pre­vi­ous near miss was dis­re­garded and ig­nored.

Mr Jus­tice Edwards said the prac­tices which cul­mi­nated in the ac­ci­dent were adopted in­cre­men­tally over a pe­riod of in ex­cess of a year.

This was not a case of pas­sive ne­glect or omis­sion giv­ing rise to a one off in­ci­dent

On the con­trary, there had been a wil­full ne­glect of the duty to en­sure the safety of Kil­saran Con­crete’s em­ploy­ees and a cal­cu­lated de­ci­sion to take un­jus­ti­fied risks.

Mr Jus­tice Edwards said the im­pugned prac­tices were not merely con­doned, they were en­cour­aged and in­deed par­tic­i­pa­tion in them was re­quired by a mem­ber of se­nior man­age­ment.

While there was no sug­ges­tion there was knowl­edge of the prac­tices in ques­tion at board level, it was a mat­ter of con­cern that in an en­tity the size of Kil­saran Con­crete, th­ese prac­tices do not ap­pear to have been picked up on any safety au­dit or brought to the at­ten­tion of the board by the com­pany’s safety of­fi­cer.

That raised “le­git­i­mate ques­tions con­cern­ing the safety cul­ture in this di­vi­sion” of Kil­saran Con­crete, Mr Jus­tice Edwards said.

He said the Cir­cuit Court judge erred in fail­ing to ad­e­quately re­flect the grav­ity of the of­fend­ing con­duct.

He said the law breached in this case was de­signed to pro­tect and pro­mote pub­lic wel­fare and par­tic­u­larly the wel­fare of em­ploy­ees in their place of work.

Kil­saran Con­crete’s “reck­less dis­re­gard for safety in the pur­suit of profit drove a coach and four through the pol­icy of the leg­is­la­ture, and re­quires to be pun­ished and fu­ture con­duct of that sort de­terred”.

Mr Jus­tice Edwards said the ul­ti­mate sen­tences of €125k was en­tirely in­ad­e­quate to com­mu­ni­cate the ap­pro­pri­ate mes­sages. It was “un­duly le­nient”, he said.

He said the grav­ity of the of­fence mer­ited a fine of €2mil­lion. The max­i­mum avail­able fine for the of­fence is €3mil­lion.

The Court of Ap­peal al­lowed a 50% dis­count for the mit­i­gat­ing fac­tors which in­cluded the guilty plea, co­op­er­a­tion, re­morse, re­me­dial steps taken and Kil­saran Con­crete’s gen­er­ally good safety record apart from the cir­cum­stances giv­ing rise to this case.

Mr Jus­tice Edwards, who sat with Mr Jus­tice Ge­orge Birm­ing­ham and Mr Jus­tice John Hedi­gan, said the fi­nal fine would there­fore be €1 mil­lion.

Kil­saran Con­crete was de­scribed in court as a “sub­stan­tial en­tity with very sig­nif­i­cant as­sets and turnover”

It had been co­op­er­a­tive with the HSA in­ves­ti­ga­tion, ad­mit­ting that it was in the wrong and ac­cepted blame for the tragedy. The com­pany apol­o­gised to the Gar­gan fam­ily, and it’s di­rec­tors ex­pressed re­morse for what oc­curred. It was ac­knowl­edged that he had been an ex­cel­lent em­ployee.

The com­pany had one pre­vi­ous con­vic­tion recorded in 2006 un­der the Safety, Health and Wel­fare at Work Act aris­ing out of a se­ri­ous ac­ci­dent in a quarry op­er­ated by it, where an op­er­a­tor fell off a work­ing plat­form re­sult­ing in se­ri­ous in­jury. A fine of €100,000 was im­posed.

Barry Gar­gan

Barry Gar­gan

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