Firm to be sentenced after employee’s leg amputated

A CIRCUIT Court judge will sentence a County Mayo engineering firm tomorrow (Friday) after they admitted criminal charges of breaches of the Safety, Health and Welfare At Work Act 2005 that resulted in one of their employees having his leg amputated above the knee, following an accident at G Bruss, Finisklin, Sligo, on September 1 2018. Kevin O’Malley was working for Jackson Engineering Ltd, Castlebar, when the jib of a crane that had been placed on the floor of the factory fell on him.

The Jackson Engineering employee was installing a new crane for Bruss along with two other employees of Jackson Engineering, when the incident happened.

The company pleaded guilty to two sample charges of being in breach of a statutory duty and a regulatory duty imposed by Section 8 of the Act and as a consequence its employee Kevin O’Malley suffered personal injury. The particulars of the pleas were that on September 1, 2018, at G Bruss, Finisklin, Kevin O’Malley was allowed to work in a danger zone beside a free-standing jib of a crane and he suffered personal injury.

The company also failed to ensure that the lift operation on the jib was not properly planned or supervised and the jib was unsupported resulting in Kevin O’Malley suffering personal injury. In opening the case, State prosecutor Leo Mulrooney guided HSA health and safety inspector Brian McHugh through a series of photographs and stills of CCTV of the events that unfolded at the factory. Mr McHugh agreed that the pics show that Kevin O’Malley was standing at the highest point or heel of the jib and all of it fell on him.

He contacted Deirdre McNutly, health and safety officer, with Bruss, who told him that Jackson Engineering had been contracted to supply a new jib crane as they had done so previously.

Three Jackson Engineering employees were involved and there were no Bruss personnel.

They were John Joe Murray, Raymond Mayart, and Kevin O’Malley. A method statement was signed regarding how the installation of the crane with a jib was to be done. The court heard the crane had been delivered on a flat-bed trailer and had plastic wrapping.

The jib was lifted away by a forklift and there were two straps attached to the forklift.

The forklift was raised high enough to bring the jib in from the yard.

The jib was left standing vertically and was resting in what was believed to be a safe position.

Kevin O’Malley was standing between the heel of the jib when it fell on top him trapping his legs.

The second forklift was being readied to move the jib into position when the incident happened.

The jib had been put down on solid ground, but plastic wrapping had to be removed from the jib so the attachments to the forklift could be fitted in. Mr Mulrooney added that in a statement taken in Castlebar Hospital on December 11, Kevin O’Malley said he was 24 at the time and was a fulltime employee of the firm. He said there was a request from Bruss for the installation of a crane in the factory.

He had never done a method statement before and based it on a similar project in 2015.

Three men were supposed to deliver the crane, but one pulled out and he filled in. It was his first time on a such a project. He said he and John James Murray had fitted the straps around the jib when it was let down in a vertical position.

The court heard CCTV footage showed that there was nothing in particular that could have caused the accident.

Apart from having his right leg amputated Kevin O’Malley had a lot of pain in his left leg, plates were inserted, and he found walking difficult. Mr McHugh concluded that this incident was preventable.

The Jackson Engineering Castlebar health and safety statement did not have a risk assessment for installation works at their customers’ premises, but it did have one for its own yard.

The risk assessment had no information on how to move the crane and only dealt with overhead contacts.

The method statement had not established how the jib could be left safely when it was left free standing.

It was Kevin O’Malley’s first time working with a crane and he had no experience of working in construction before.

He was relying on the experience of his two colleagues and they were under the illusion that he was the foreman.

The court was told that Jackson Engineering had fully co-operated with the investigation and had no previous convictions.

The injured party did not want to be in court and did not want to give any victim impact statement. When Judge Francis Comerford asked how the procedure with the crane should have been done, Mr McHugh said the jib should have been put horizontally on the ground first and all the plastic taken away from it and it should never have been left freestanding.

Defence Counsel Des Dockery told Mr McHugh that a detailed statement was taken from Stanley Jackson on July 19 2019 and it was very frank and understanding about how the incident had happened.

Once the machine had been ordered by Bruss he got Kevin O’Malley to prepare a method statement which was based on a previous successful operation in Bruss in 2015.

There was oversight and Kevin O’Malley was not left to his own devices and Mr Jackson takes responsibility for the matter. Jackson Engineering brought two forklifts and three of their own employees at the request of Bruss.

Mr Dockery said the family firm which employed 11 people was not aware that there would be such heavy wrapping, it believed the manoeuvre of the crane would be done in one movement and thought the jib would be placed on the ground.

This was a tragic isolated incident and not reflective of any ongoing neglect. And there was no suggestion of taking short cuts for profit.

The company had a good 24-year record since it was founded in 1994 and there were no issues since and it has now ceased all installing works after correctly completing safety measures.

The court was told the maximum penalty for this offence was a fine of €3m and a jail sentence of two years

Irene Jackson, wife of co-director Stanley Jackson, agreed with Mr Dockery that the operation of the assembling the crane was to be in one lift and that was why there was no bespoke plan.

She agreed that there had never been any accidents at the company’s base in Drumconlan Industrial, Castlebar.

The injured party had taken a civil claim against the company which came to €1.7m and costs and a contribution towards that settlement had been made by Bruss.

The company had kept Kevin O’Malley on full wages for six weeks until October 19 and they then topped up his subsequent benefit payment to make a full week’s pay until April 1, 2019 and this had ceased on his instruction. Mr O’Malley came back to work on a three-day week from February 2020 to July 2020 but stopped due to an infection, but he was welcome to come back at any time.

The company had financial difficulties after the economic crash of 2008 and had a debt of €2.7m and had it restructured with Bank of Ireland in 2013 and had €508,000 written off by the bank.

The bank sought and had charge over business and personal securities and the company could not borrow anything over €20,000 without the bank’s permission.

The monthly repayments to Bank of Ireland were around €12,000 per month.

And the Covid pandemic had caused a downturn in turnover of 25 per cent. Mr and Mrs Jackson’s salaries from the company totalled €70,000 per year which broke down at €463 nett per week for Ms Jackson and €523 nett per week for Mr Jackson, the court heard.

The witness accepted that Kevin O’Malley’s life would never be he the same again, but they remained on good terms and they accepted responsibility at all times.

Mrs Jackson agreed under cross-examination from State Prosecutor Leo Mulrooney that the company’s insurance policy had paid for the award to Mr O’Malley.

She agreed that the installation of the crane at Bruss had been envisaged that it would be in one lift. The witness agreed that the company directors had a good idea of what should be done but this was not told to Mr O’Malley. Company accountant Michael Kelly confirmed that the Jackson’s had re-mortgaged the family home to the sum of €300,000.

They were a small company with assets of around €1.6m and liabilities of over €700,000.

Their nett profit for 2020 was just €23,000 and that was a fall from €110,000 for the previous year.

And the company could be closed down for three or four months longer than last year.

If a large fine was imposed arising out of this court prosecution the Bank of Ireland might seek the receiver to protect its assets.

In a plea of mitigation Mr Dockery said it was a small family company with two directors and 10 employees and there was no wilful disregard of safety standards and there was no profit motive.

And although there was no admission of liability Mr O’Malley was awarded a considerable settlement. It was an isolated incident in Bruss as accepted by Mr McHugh.

They had co-operated fully with the investigation and have taken remedial measures and they disengaged from this type of work.

There was guilty plead.

They had a clear previous record and had not come to the attention in the interim.

The victim Mr O’Malley was treated very well, relations have been good.

He is highly regarded by the company and his disability does not stop him from working for the company.

Mr Kelly’s evidence was that the company does not have the liquidity to repay a penalty of more than €20,000 without sanction from the bank and that could threaten the future of the company.

It was a small family business that runs the risk of being put out of business if there is a big fine. Of course, there were devastating consequences for Kevin O’Malley and that was fully accepted. The incident was an isolated one with a breakdown in communication as to how the jib was going to be moved down the crane pillar and it was not taken into account the amount of plastic that had to be removed.

It was a case of omission and there were extenuating circumstance. Mr Dockery asked the court to consider giving a penalty that meets the case which falls within the company’s ability to pay. Mr Mulrooney applied for and was granted costs of €3,800.

Judge Comerford said it was a serious matter and he would deliver sentence tomorrow (Friday) at 2pm. an early