Ireland: Love Your Neighbour! Recent Cases And Duties To Third Parties

All employers are familiar with the duties imposed by the Safety Health and Welfare at Work Act 2005 (the "2005 Act") to ensure, so far as is reasonably practicable, the safety, health and welfare of their employees. It is important, however, to have a clear understanding of the potential reach of the duty imposed upon employers in respect of persons other than their employees.

Section 12 of the 2005 Act requires every employer to

Recent cases highlight the importance of understanding and discharging the duties which may be owed to persons other than a company's own employees. Between 2008 and 2013, 21 prosecutions have been brought by the HSA for contravention of section 12¹.

The duty imposed by this section applies to employees of third parties who may come onto the employer's place of work, such as contractors and sub-contractors who attend at your premises to carry out works, such as repair or maintenance, or to install equipment or services. However, it is not always appreciated that the scope of this duty extends far beyond this, and will impose a duty on employers towards visitors to the place of work, members of the public, both at or near the place of work and even to trespassers. That trespassers could fall within the scope of protection afforded by this section was made clear in the prosecution of O'Flynn Construction in 2006, which followed the death of a young boy who had unlawfully gained access to the site, where he had found unsecured hazardous material which ignited, resulting in fatal injuries. The Court clearly stated that O'Flynn Construction should have been aware that young people might gain access to the site, and therefore have ensured that all hazards were properly secured. Actual knowledge of the trespassers was not necessary for the duty to arise. It is clear, therefore, that an employer will be required to ensure that they have considered the impact of their activities on all persons, including undertaking a risk assessment in relation to hazards that are presented by the way the undertaking is managed and measures included within their safety statement for managing those risks.

The Meath County Council bus tragedy, which came before the courts in 2008, was another important reminder of the extent of this duty and how several parties may owe this duty in the context of a single incident. Not only was a very significant fine of €2m imposed on Bus Eireann, but the company engaged to maintain the bus as well as the vehicle testing company were both charged under section 12. The more recent prosecution, following the school bus crash in Clara, County Offaly in 2006, also resulted in convictions of both the bus owner and the vehicle testing company under section 12, with a 12 month suspended sentence imposed upon the bus owner for failing to maintain the bus.²

B&Q were convicted in 2011³ and fined €250,000 following a fatality which occurred at one of their garden centres, when a bundle of fencing panels fell on a visitor. B&Q pleaded guilty to a charge under section 12, having failed to ensure that the panels were safely stacked, exacerbated by having failed to close the garden centre during high winds which contributed to the panels falling on the customer. There was also evidence given that B&Q had failed to carry out a risk assessment of the system used for stacking the panels.

The recent conviction of Nolan Transport, with a fine of €1m imposed, one of the highest fines for a health and safety offence, taking account of the size of the company, makes clear that companies involved in transport activities, are required to ensure that loads can be safely transported without creating a risk to members of the public. In this case, Nolan Transport were moving a number of steel coils on a lorry trailer, but had failed to ensure that the coils, which each weighed five tonnes, were properly secured to the trailer. When rounding a bend, the coils came loose and fell into the path of oncoming traffic, resulting in two fatalities and further injuries. Interestingly, the coils had been loaded by another party at the port in Wales. Nolan Transport, however, being in the road transport business, owed a duty to adequately secure the coils, so as to ensure that members of the public, travelling on the public road were not exposed to a risk to their safety. The court was of the opinion that there had been a "flagrant disregard for safety".

In a High Court decision earlier this year, an interesting debate occurred between Kerry County Council ("KCC") and the HSA, arising from a challenge by KCC to the jurisdiction of the HSA to investigate a road accident⁴. An accident occurred on a stretch of road where road works were on-going. Works had been suspended over the weekend, and the road had been re-opened to two-way traffic. A car collided with traffic cones placed in front of a traffic island, and overturned, killing the driver. KCC sought to argue that the focus of the 2005 Act was the protection of employees (there had been no-one working on the road at the time of the accident) and was not intended to extend to motorists travelling on the road since the accident did not arise out of or in the course of employment. The HSA argued that the road continued to be a place of work as long as works were on-going and section 12 was also concerned with the protection of members of the public from risks associated with workplace activities.

The court found squarely in favour of the HSA, noting that the roadway where the accident occurred was very much still a place of work in the same way that a building site retains that character over the course of a weekend when work is temporarily suspended. Interestingly, the judge went on to note that his decision might have been different had the works been suspended for a period of weeks or months.

These recent decisions are an important reminder for employers to ensure that they include within their risk assessments all third parties who may be affected by their activities and the way in which their businesses are managed and conducted, and have in place appropriate measures to ensure that the health and safety of such third parties, including trespassers, are adequately protected.

Footnotes

1 Reported in Health and Safety Review, May 2013

2 DPP for HSA –v-Raymond McKeown and O'Reilly Commercials Limited, Dublin Circuit Criminal Court, July 2013.

3 DPP for HSA –v- B&Q, July 2011

4 Kerry County Council –v- Health and Safety Authority, [2013] IEHC 140

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.