Fines, suspended sentences for companies after building-site death
Fines totalling €250,000 have been imposed on two companies and suspended prison sentences on two men arising out of the death of a young father of one on a Bray building site.
The man, who died when a crane came into contact with a 10,000-volt overhead wire at Diamond Valley Developments, Dargle Road, Bray on February 19, 2003, was 27-year-old Darren Kelly.
Cormac Building Contractors Limited was fined €150,000 by Judge Thomas Teevan who also imposed a €100,000 fine on Kildownet Utilities Limited.
The companies pleaded guilty to reckless endangerment at the site on which Cormac Building Contractors was the main operator in the construction of three blocks totalling 98 apartments at Diamond Valley and Kildownet Utilities was a specialist concrete subcontractor.
Joseph Byrne of 67, Esker Park, and Brian Molloy of 74, Foster Lawns, both Lucan, Co Dublin who were found guilty by a jury at Wicklow Circuit Criminal Court of intentionally or recklessly engaging in conduct which created a substantial risk of death or harm to Mr Kelly were each given suspended sentences.
Judge Teevan imposed a three year sentence on Byrne (aged 52), site foreman for Cormac Building Contractors and a two year term on Molloy (aged 35), a director of Kildownet Utilities.
He said a wrong decision had been made on the fatal day to continue the work and even if a jury had not convicted Byrne and Molloy they had to live with the fact of Mr Kelly’s death. The balance in these matters had to come down always on the side of the safety of the workers "and in this case it didn't".
Judge Teevan that while the penalties had "to reflect the outrage felt by right-thinking people" at these crimes, the monetary penalties "don’t reflect in any way a value being put on Mr Kelly’s life".
Mr Tom Murphy, Health and Safety Authority, told Mr Paul Murray BL, prosecuting, that Mr Kelly was on the site for just his second time when killed, having worked there for the first time two days previously.
Mr Murphy said there were two sets of 10,000-volt overhead power lines at the site but no safety measures such as bunting and 'goalposts' as laid down in the ESB guidelines seemed to have been put in place despite warnings given by advisors retained by the two companies themselves, by an off-duty ESB employee and by Mr John Mayne, a HAS inspector.
Mr Murphy agreed with Mr Anthony Sammon SC (with Mr Vincent Heneghan BL), for Molloy, that he had recognised there was a danger but made the mistake of not making sure the work stopped entirely until the correct measures had been put in place by Cormac.
When Mr Hugo Hynes SC, for Byrne, told Mr Sean Kelly, a brother of the deceased man who was working with him when he was killed, that he had been instructed to offer his sincere sympathies, Mr Kelly replied: "This is after three years down the line."
Mr Kelly then told Judge Teevan: "When all this happened, only Brian and Tom Molloy came to me to help me." He said he was a shareholder and director with the Molloys of a company which did most of its work under contract for Kildownet and that a trust fund had been set up for the benefit of his dead brother’s daughter.
Mr Hynes said Byrne offered €10,000 in compensation to the deceased man’s family and added that Byrne and his family had to live with his conviction but that incarcerating his client would not benefit anyone. Judge Teevan directed that the €10,000 be paid out to the trust fund.
Mr Murphy agreed with Mr Conor Devalley SC, for Kildownet, that the company now worked for some of the biggest developers in the country and had grown bigger and more profitable.
Mr Raymond Comyn SC (with Mr Reny Farrell BL), for Cormac, said only "a hard-hearted individual" could not be affected by what happened. The company recognised that any apology it offered at this time would be treated with contempt and disdain by the Kelly family but it offered its sympathies to them.
Mr Comyn suggested that it came across in the trial in July that bunting erected at such a site would not in itself have prevented an accident but he agreed it would have provided a warning.
The trial jury heard of regular concern expressed about crane operations under the 10,000-voltage overhead wires. One of the first warnings was given on April 24, 2002 by an ESB engineer, Mr Dave Matthews, who told Mr Murray that his attention was suddenly called to a crane operating there while he passed the site "on my motorbike enjoying a lovely morning".
Mr Matthews said he immediately turned around and went to the site office where after being kept waiting 10 minutes he spoke to Byrne and brought to his attention the danger involved in what was being done.
Mr Matthews told Mr Murray that he saw nothing on the site which would alert anyone to danger such as "goalposts" which would limit the height that vehicles could travel at. Asked if there was any bunting present as a warning of danger, he replied: "Absolutely not."
The jury also heard evidence from three other witnesses, including evidence by video link from Mr Mayne, the former HSA inspector, now resident in New Zealand, who said he twice issued directions in relation to the overhead wires.
Mr Martin Lawless, a safety consultant retained by Cormac, said he found on a visit on June 20, 2002 that there were problems with the site and he discussed the danger posed by the overhead wires with Byrne on July 2, 2002. It appeared that lorries were regularly knocking down the signs that were put up.
Mr Lawless said he noted on July 24, 2002 that better warning signage was needed on a site on which 30 vehicles could be working on any day. Mr Mayne’s directions were communicated to him on September 10, 2002 and it was decided "to sterilise" one particular area for three days until new signs went up.
Mr Mark Corcoran, said his firm, M C Associates, was retained as a safety advisor by Kildownet Utilities and on January 7, 2003 he "became extremely alarmed" by a mobile crane working under the high voltage wires with no "goalpost system" in place.
He spoke to "a person in charge" and as a result materials which were being moved by the crane were then moved around manually.
Mr Corcoran said he had been contacted by Molloy to go to the site, He reported back to Molloy who the next day, January 8, 2003, organised a site meeting which was attended by Byrne among others and they discussed how work might proceed having regard to the overhead wires.
He said Molloy and Mr Joe Wall were trying to get Cormac, the main contractor, to work safely but the company had no safety advisor at the meeting.
Mr Corcoran identified "site safety audits" carried out by Mr David Gibbons of M C Associates on November 22, December 12, and December 18, 2002, and on January 15 and February 6, 2003 in which "major concern" was expressed about the wires. He wasn’t sure what Mr Gibbons meant by "No work" on a report dated February 12, 2003.
Mr Corcoran agreed with Mr Hynes (for Byrne), that he sent a letter on July 13 last (2006) to the prosecuting solicitor in which he noted that in his view "no real solution" came from the meeting organised by Molloy on January 8, 2003.
He told Mr Hynes that he gave his January 7, 2003 report to both Byrne and Molloy before the meeting which he agreed was attended by senior people involved in the project but he didn’t recall discussions about costs and delays.
