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Cite as: [2006] IECCA 56

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Judgment Title: D.P.P.-v- O'Flynn Construction Company Ltd.

Neutral Citation: [2006] IE CCA 56

Court of Criminal Appeal Record Number: 27/03

Date of Delivery: 06/04/2006

Court: Court of Criminal Appeal

Composition of Court: Murray C.J., Peart J., Gilligan J.

Judgment by: Murray C.J.

Status of Judgment: Approved


Judgments by	Result
Murray C.J.	Dismiss appeal

Outcome: dismiss appeal

- 11 -

THE COURT OF CRIMINAL APPEAL

Murray C.J. 27/03
Peart J.
Gilligan J.

BETWEEN

THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS

-v-

O’FLYNN CONSTRUCTION COMPANY LIMITED

APPELLANT

JUDGMENT of the Court delivered on the 6th day of April, 2006 by
Murray C.J.

This is an appeal by O’Flynn Construction Company Ltd against the penalty imposed by the Circuit Court consequent upon its conviction, after a plea of guilty, to the two offences pursuant to Safety, Health and Welfare at Work Legislation at a construction site at Clarke’s Hill, Rochestown, Co. Cork.

The Company pleaded guilty to the following offences:

1. Failing to conduct its undertaking in such a way as to ensure so far as is reasonably practicable that persons not in its employment who might be affected thereby were not exposed to the risks to their safety or health, in contravention of s. 7(1) of the Safety, Health and Welfare at Work Act, 1989 contrary to s. 48(1) of the said Safety, Health and Welfare at Work Act, 1989.
2. Failing to signpost and lay out so as to be clearly visible and identifiable the surroundings and perimeter of a construction site, in contravention of paragraph 18 of the Fourth Schedule of the Safety, Health and Welfare at Work (Construction) Regulations, 1995 (S.I. No. 138) in contravention of Article 8(1)(g) of the said Regulations, contrary to s. 48(1)(c) of the Safety, Health and Welfare at Work Act, 1989.

The Circuit Court imposed a fine of €200,000.00 on the first count taking the second offence into account. It is from the severity of this sentence that the appellant appeals. The offences occurred on 9th September, 2001. There is no significant dispute as to the facts of the case.

The incident giving rise to the two charges occurred at what was known as Mount Oval Village in Rochestown in Cork. In September 2001 it was a very large construction development situated on over 100 acres on which it was planned that 9 separate housing estates, totalling 850 houses and some apartments plus a shopping complex would be built. It bordered a number of occupied housing estates with Broadale on its southwest side, Foxwood on the southeast, Maryborough Heights on the northwest and Clarke’s Hill on the northwest. The appellants were the main contractors for the site. Among the matters tendered to the trial judge for the purposes of the hearing on sentencing were statements of the evidence to be given by various witnesses relevant to the offences which included that of Ronan Tollman, age 13, who gave a full account of the background and the circumstances of the incident. He stated:

“My friends and I play on the building site approximately once a week. We go biking there and climb on the scaffolding and sometimes play a game of chasing. It is easy to access the site through openings in the ditch. I have only seen a security guard once which was on bonfire night. We had been chased off the site by people with hardhats, but we normally only enter the site when they are not working. On 9/9/01, a Sunday, about 10 of us were playing on the building site next to Broadale. Two of us were climbing scaffolding on the side of one of the new buildings being built. Around 4:30 p.m. the other 8 lads left to go back. The two of us left about 5 minutes later. I am not sure about the times. Around the corner where we had just been and on the way back to Broadale we came across a group of six guys. I knew most of them to see expect one. Stephen Long was there as well. I saw one of the boys with a small plastic bottle and he was pouring liquid from it into the ground. The liquid was green in colour. About six or eight feet away from him was a green barrel and there was a green liquid squirting out of it. The liquid was squirting from a small hole I saw in the barrel. I didn’t see the cap for the small holes. The barrel was on its side lying on the ground. It was on its side when we arrived. There was another hole in the barrel but it was capped. I think the cap was white. I then saw the boy who had the bottle with a lighter in his hand. I do not know what colour the lighter was. He then tried to light the liquid on the ground that he had poured from the small bottle with the lighter. When he did this a flame appeared and the flame went back into a line towards the barrel. This was about six to eight feet of a line of flame. The flame then got to a puddle of the liquid which was about a feet from where the end of the barrel was. The puddle caught fire. The fire was getting bigger. The liquid was still squirting out. I remember saying something like “it will blow up” or “it’s going to blow up”. I remember three of the boys all ran away at this stage. I then saw two older boys arrive. I remember the boy who had lit the fire pushing the barrel with his hands and it rolled over. He was trying to get away from the puddle which was on fire. At this stage he and his friends were at one side of the barrel and my friend, the two older boys and I were on the opposite side and Stephen was out towards the front of the barrel. When I say the front I mean the part of the barrel where the liquid was squirting out. When the barrel was rolled over the liquid stopped coming out of it. This was only for a few seconds because when the barrel rolled again the liquid began to squirt out again. This caught fire straight away. Some of us were kicking dirt and stones onto the fire trying to put it out. Then next thing I remember was I moved back away from the fire. At this stage the flames were about two feet high and about six feet wide. The next thing was a loud bang and the barrel exploded. I could feel the heat and I ran. When I stopped running and I turned around I saw Stephen Long. When I saw him he was on fire. He was running around in circles and screaming. He wasn’t really saying anything really just screaming really loud … Stephen just kept running. I picked up a stick and I ran after Stephen and I tripped him and he fell on the ground. We were still telling him to roll and then he listened to us and he started to roll. The fire on Stephen died down but it did not go out completely. I think it was about five minutes while we were trying to put out the fire on Stephen.”

An ambulance was called and the boy moved to hospital suffering from severe burns. He later died from his injuries.

The barrel in question was a 210 litre drum of wood preservative.

The drum of wood preservative had been transported from another building site of the appellants to the Mount Oval site on the Friday afternoon prior to the Sunday on which the fatal incident. It was delivered on a wooden pallet at approximately 4:30 p.m. on the Friday. A statement taken from the foreman on the appellants’ site from which the barrel was dispatched stated:

“This was a steel barrel with two screws on plastic covers which were extremely hard to remove. The barrel was not damaged or leaking. I had personally closed and tightened the covers on the barrel before it was removed.”

It was explained to the Court on behalf of the appellants that a mistake had taken place on its delivery and the mistake was that the barrel should not have been left out in the open. It was left on the site on its pallet where some other construction materials were located some distance away from where the building work was taking place. It was explained that the mistake took place because the relevant goods, instead of being purchased from a supplier in the normal way, had been moved from one finished building site to another building site and some member of the appellants’ staff had left it on the pallet in the open rather than putting it into a locked compound.

When he came to imposing the penalty in this case the learned trial judge summed up succinctly the elements relevant to this fatal and tragic incident and indicated his findings of fact on one or two matters which were in issue. He very clearly sets out the factors which he took into account in coming to decision on penalty. In order to determine whether or not he erred in principle which he imposed substantial citation from his decision is warranted. In the course of that decision he stated:

“What they pleaded guilty to is their failure to conduct their undertaking in such a way so as to ensure as far as was reasonably practicable that persons not in its employments might be affected thereby were not exposed to risks to their safety or health. And that a person not in the employment of the said O’Flynn Construction Company Limited, one Master Stephen Long, was exposed to risks to his safety and health and that access to a hazard on the site by unauthorised persons was not so far as was reasonably practicable prevented. The unfortunate facts of this case have already been outlined to me and briefly they are that Stephen Long and other boys were playing in this site. There was a barrel which contained a very dangerous substance which they didn’t know about, of course. It was knocked over and some of that substance was released. Whether it was released by the assistance of other boys or whether it leaked as one of the statements on the book of evidence suggests, I don’t know. A fire was lit and an explosion followed as a result of which Stephen Long suffered severe burning as a result of which he died. The first thing is I want to express my sympathy to Mr. and Mrs. Long in this tragedy. The evidence has been from the Health and Safety officer, Mr. Costelloe, carried out an examination and he told me quite simply that the area of land was not properly fenced so as to ensure that children would not get in and secondly, that this barrel should not have been left where it was left. And Mr. O’Mahony, on behalf of the accused company, in effect, accepts that with various reservations and I do not propose going into them. Mr. Costelloe didn’t give me direct evidence but on the book of evidence there is – didn’t say I think, didn’t mention the various factors which he considered to be contributing to the accident but in his statement of evidence if he had given evidence he would have referred to them and I have read the book of evidence. At paragraph 6 he says, “Factors contributing to accident. There seems to be no one direct cause of the accident. A number of factors combined either directly or indirectly which influence the actions that occurred with ultimate disastrous consequence, these are listed below. A, no provision in the safety plan to control unauthorised access to the site. B, uncontrolled access to the site. C, no security on site during daytime hours over the weekend of the 7th to the 9th September. No procedure in place allocating responsibility for secure storage of deliveries from other sites. Information that the delivery included a barrel of wood preservatives was not communicated to Mr. Patrick O’Flynn the project supervisor. A barrel of hazardous substance was not properly secured after delivery and delivery of the load was made at 16:30 hours, approximately a time that all workers were completing work for the day.” He didn’t add that it was a Friday but apparently it was. They are the reasons that he finds as being factors contributing to the accident and I accept those. The defendant company are in business for over 20 years and are substantial developers in this city and I presume county as well. The director of the company who gave evidence, MR. Kelleher, told me that they were not aware that children were going on to this site. I found that very difficult to accept. I have seem a photograph which was on the book of photographs exhibited by Mr. Costelloe and there was a defined track coming from the Broadale estate where this young boy resided with his parents coming into the O’Flynn site and anyone walking around there would have seen that and would have known what that was used for in the main. I reject the proposition that they didn’t know that children were going on to that site and if they didn’t know they should have known because they are experienced builders and they must have been aware that children would go on to sites like this. Children are always curious. I accept that it was a 100 acre development on the south side of the city in what is described as one of the upmarket areas of the city, indeed, where I presume the land costs a lot of money, where the houses are going to cost a lot of money where the property is going to cost a lot a money. That would be all the more reason why this site should be better protected. I don’t know how many prosecutions there have been of this nature in this city over the years in this court but from my own experience this is the second one that I have dealt with and I am sitting here now – I am in my 14th year and this is only the second one. There is a very grave responsibility imposed on all developers to ensure that children do not get on to sites and to ensure that the horrific consequences that took place in this instance do not occur and builders have to accept their responsibilities … I would have though that was the Bible to most developers of any sort of site, particularly developers of a site which was located in the immediate vicinity of other existing housing estates or housing developments where on a high probability young children were likely to reside with their parents. That sets out what ought to be done. It says, for example, “Given the hazards of construction sites and that it is children who are at risk, the degree of risk is high for most sites.” It also says, in general precautions that developers should talk to residents in the area. I say that because I note in one of the statements of evidence if the case had gone on a witness would have said that they had made various planning representations to the planning authority and was quite concerned about this particular site but that is by the way. I do not think there is much point in saying much else in the case. It is a tragic case as I have said with I am sure terrible results for the parents of Stephen Long. So far as a penalty is concerned, Mr. O’Mahony has asked me to take matters in mitigation that this fire was caused because – this tragedy was caused because somebody lit a fire. That was the last act. The first act was there was not any fencing. The second one was there was not any security. If both of those had been there, there would not have been any tragedy. The third one was that the barrel was placed where it was placed, out in the wide open and that it was knocked over.”

The learned Circuit Court Judge then made reference to a statement in a document setting out safety standards to be observed on construction sites which was published by a health and safety body in the United Kingdom. Giving evidence in the Circuit Court Mr. Michael Kelleher, a Director of the defendant company with responsibility for safety, acknowledged that he was aware of the standard set out in that document prior to the tragic events which led to this prosecution and that it was a known reference point for safety standards on building sites.

The court is satisfied that the learned Circuit Court Judge correctly identified the factors which contributed to the tragic event leading to the death of the young boy in September 2001.

In mitigation the defendant company advanced a number of factors grounded substantially on the evidence of Mr. Kelleher. First of all it was submitted that the fencing of the site was, at the time, reasonable in all the circumstances. Given the size of the construction site as a whole it was difficult if not impossible to fence effectively the entire of the perimeter although there was substantial fencing in many parts of it which had not been subject to prior criticism by the Health and Safety authority. They accepted however that it was the company’s responsibility to have effective fencing. They had considered they had done this by ensuring that the areas where building or construction work were actually being carried out, inside the perimeter of the site, were themselves fenced. It was also pointed out that even with effective fencing, it was difficult if not impossible to prevent youths from entering on the building site if they were determined to do so. It was stated, for example, that this is what happened subsequent to the date when the fatal accident occurred after the perimeter fence had been strengthened and augmented in accordance with recommendations made by the health and safety authority after the accident. In his evidence Mr. Kelleher laid a great deal of emphasis on the fact that the company had received no report of children or young persons being on the site.

It was also pointed out that the company had safety consultants who carried out quarterly safety audits of the construction site and the company itself had regular safety meetings and assessment of hazards although the latter tended to focus on safety of workers and safe working practices.

As regards the storage of certain building materials, including an item such a drum of wood preservative, the company had a procedure in place for their storage. They were stored in a locked container on site so that they are kept there and only removed when required. It was stated that this was a substantial store which was locked when the premises were unoccupied.

It was also accepted by the prosecution that the breaches of the statutory and regulatory provisions governing safety at the construction site, to which the applicant’s in this appeal pleaded guilty, were not a direct cause of the tragic death of the deceased. It was emphasised by the company that among the contributory factors were the circumstances in which the liquid which was spilled from the drum was set on fire and then the failed attempt of some of the boys present to extinguish or limit the fire by pushing the barrel away from the burning liquid on the ground. It would appear that for this purpose an attempt was made to roll the barrel away from the liquid which was burning on the ground. When the barrel was rolled over the liquid stopped coming out for a few seconds but then began to squirt out again as a result of which this liquid caught fire, the flames were a couple of feet high and then the barrel exploded.

Decision
It may be said that the offences committed by the applicant company were not the direct cause of the death of the young boy, Stephen Long, on 9th September, 2001 in the sense of they being the sole and primary contributing factors to its occurrence. Nonetheless the defaults of the company were significant contributory factors to the combination of circumstances which led to this tragic death. In circumstances like the present case where there has been a breach of general standards of safety on a building site which leads indirectly to personal injury, or as in this case, a fatality, the fact that such an injury or fatality occurs may be due to a chance combination of circumstances linked to the breach of standards. The degree of culpability of a defendant in cases such as this will inevitably depend on the particular circumstances of each case.

In this case the Court is satisfied that while there was no recklessness on the part of the company there was a serious degree of culpability on its part having regard to the evidence before the learned Circuit Judge and the facts referred to by him when imposing sentence.

These included his finding that the applicant company knew, or at least, ought to have known that children were likely to enter upon and did in fact enter upon the building site regularly from the nearby estate. Mr. Kelleher, when called to give evidence for the purposes of mitigation on behalf of the company, laid a great deal of emphasis on the absence of any reports to the company of the presence of children on the site. This merely highlights the failure of the company to specifically address the issue of children coming onto the site.

It is notorious that building sites, particularly those adjacent to where young people live, are frequently if not invariably an attraction for children and teenagers to enter upon, play and explore. It is entirely foreseeable that when children or teenagers enter upon a building site that they will get up to mischief or engage in dangerous activity which a reasonable or prudent adult would not do. This may include climbing on scaffolding, into and around partially constructed buildings, interference with plant or machinery, tools or materials on a building site. Moreover, Mr. Kelleher in his evidence, fully recognised that the likelihood of children entering upon building sites was a factor which construction companies were bound to take into account, as a matter of good safety practice, in their safety procedures.
On the date of the fatal incident there was ample evidence of quite a number of children being on the site and no suggestion that they were at any time approached by security staff or other personnel of the applicant company. A security firm had been employed just three days before the incident for security purposes but this had been prompted by the burglary of some tools from the site and the measures seem to have been essentially directed at protecting the building site from a repeat occurrence. In any event there was no indication that they made any contribution to the control or supervision of persons entering upon the site, including children, outside working periods. Furthermore, the evidence before the learned trial judge, upon which he was entitled to rely in view of the plea of guilty, was that there was no provision in the company’s safety plan to control unauthorised access to the site, there was no security on the site during daytime hours or over the weekend of the 7th – 9th September and there was no adequate procedure in place allocating responsibility for secure storage of deliveries from other sites.

The most serious lapse on behalf of the applicant company was the delivery onto the site of a drum containing hazardous material and leaving it placed in the open without securing it against interference by persons such as children or teenagers who ventured on to it. Mr. Kelleher claimed that they had a procedure for the securing of such materials in a locked compound but there was no evidence that it had any application in respect of the incident in question. The evidence before the Circuit Judge indicates that neither the person charged with delivering the drum in question, the person who unloaded it nor Mr. Patrick O’Flynn, the project supervisor, were informed that the drum or barrel in question contained hazardous material nor were they given any instructions as to its safe storage.

In the circumstances the Court is satisfied that the learned Circuit Court Judge was perfectly entitled to take a serious view of the breach by the company of the relevant statutory and regulatory provisions. The breach was aggravated by the fact that it played a significant role in the combination of circumstances that led to the fatality. The trial judge clearly took into account the mitigating factors advanced by counsel on behalf of the company. It is also true that in its 20 years of being in the business of the construction industry it had not previously been convicted of any offence of this nature and that it pleaded guilty to the two offences in question.

Having taken the mitigating circumstances into account the trial judge was nonetheless entitled and indeed bound to impose a penalty that reflected the seriousness of the offence so that it applied appropriate punitive and deterrent elements. Among the elements to be taken into account in assessing the severity of a fine, whether imposed on an individual or a corporate entity, is the wealth or resources of the person or company concerned. As was found by the learned trial judge the defendants in this case are a substantial company who were involved in a very substantial construction project. It could not be said to be disproportionate to their means and resources.

More importantly, the Court is of the view that the fine imposed is proportionate to and reflects the seriousness of the default of the defendants in committing the offences to which they pleaded guilty. It could not be said to be unduly severe or wrong in principle.

Accordingly the appeal is dismissed.