Thursday 12 December 2019

Haulage firm loses appeal against €1m fine

Nolan Transport were fined in court.
Nolan Transport were fined in court.

A major New Ross road haulage firm fined €1 million for inadequately securing steel coils which slid off a trailer killing two motorists, has lost an appeal against the severity of its fine.

Roadteam Logistic Solutions, formerly known as Nolan Transport Limited with a registered address at Oaklands, New Ross, had pleaded guilty to breaching the Safety, Health and Welfare at Work Act following a road accident near Thomastown, County Kilkenny on July 19, 2007.

Holding that the accident was 'clearly foreseeable' because of the dangerous manner in which the load was being transported, Mr Justice Raymond Fullam sitting at Wexford Circuit Criminal Court fined the company €1 million on Februray 25, 2013. The maximum fine was €3 million.

Roadteam lost its appeal against sentence on Thursday with the Court of Appeal holding that the fine was 'just and proportionate'.

Giving judgment, Mr Justice Garrett Sheehan said Roadteam was the owner and operator of the lorry which was transporting six steel coils weighing 25 tons. The coils were placed on crates but they were inadequatly secured.

While approaching a bend in the road near Thomastown, Mr Justice Sheehan said the lorry began to lean to the wrong side of the road. The straps used to secure the metal coils started to break and fly across the road, and the six steel coils began to slide off the trailer.

The drivers of two cars travelling on the other side of the road - Mary Lonergan and Vanessa McGarry - were killed and four other people were injured.

Mr Justice Sheehan said the lorry was travelling at 53 km/h when it approached the bend. That was relevant, he said, in light of the company's submission that the fault for the accident lay mainly with the driver.

While this may not be 'entirely inaccurate', Mr Justice Sheehan said the secure strapping of a heavy load on a truck is necessary to ensure the safety of other road users in all kinds of driving conditions.

Roadteam had no previous convictions for health and safety breaches and since the accident it was noted that the company had spent a considerable amount of money improving its health and safety standards, Mr Justice Sheehan said. It had also apologised to the families of the deceased and those injured.

The company submitted through its barristers Shane Murphy SC and Paul Anthony McDermott SC, that the fine imposed was entirely disproportionate to a single act of omission rather than comission.

Its lawyers further submitted that the sentencing judge erred in equating the case with the worst case to come before the Circuit Court.

Mr Justice Sheehan said the Circuit Court heard expert evidence over two days which showed that the webbing straps on the level of load restraint was grossly inadequate; the level of loader strength was grossly inadequate; the knotting of frayed ends was in complete contravention of good practice and should never have happened; the cradles provided no resistance to sideways movement and none of the straps had markings indicating their lashing capacity or breaking load.

Furthermore, there were still health and safety issues surrounding the security of loads at Roadteam's premises in Wexford at the time of sentencing, the judge said. Mr Justice Sheehan said the omissions were of 'a high order' and were all the more serious because they related to a core activity of Roadteam's business.

The Court of Appeal held that the sentencing judge was entitled to conclude that the omissions amounted to a gross dereliction of Roadteam's statutory duty to road users.

While noting that the risk of death or serious injury are often a matter of chance, the sentencing judge held that in this case those risks were 'more than a matter of chance'.

Conscious of the 'overspill factor', he directed that the €1million fine be paid over three years.

Mr Justice Sheehan, who sat with Mr Justice George Birmingham and Mr Justice Alan Mahon, said that while the fine imposed was a significant one, it was 'just and proportionate' given the nature of the omissions and the harm caused.

Accordingly, the appeal was dismissed.

According to the court's judgment, Roadteam contended that the sentencing judge focused unnecessarily on the corporate structure of the company and that a reasonable observer could be left with the impression that it was punished for something other than the count it pleaded guilty to.

This complaint appeared to arise out of the questioning of the managing director about the financial affairs of the company, the judgment stated.

Mr Justice Sheehan said it was clearly the Smurfit case the judge had in mind when he described the present case as being on a level with the worst cases to come before the Circuit Court.

He said the Court of Appeal found it 'difficult to disagree with this assessment'. While Roadteam's culpability may be less than in the Smurfit case, its omissions were 'nevertheless extremely serious'.

There could be no doubt that the harm done was 'infintely greater' than in the Smurfit case, where the injured workers had both returned to work by the time of sentencing, Mr Justice Sheehan said.

Roadteam employed more than 500 people at the time of sentence and had a fleet in excess of 300 vehicles.

Wexford People