Council Found Not Guilty of Health and Safety Breaches

Waterford City and County Council was found not guilty in the Circuit Criminal Court in Waterford last week, of four breaches of Safety Health and Welfare at Work Act arising out of the death of a road worker during pothole tarring operations in Tallow, County Waterford.

On the directions of the trial Judge Pauline Codd a jury returned the not guilty verdicts at the end of a four-day trial last week.

Father of three, John Vincent Delaney of Chapel Street, Tallow, died instantly from head injuries suffered when he was knocked down by a reversing council truck while filling potholes on the Mountainfair Road, Tallow on July 12th 2011.

The Council pleaded not guilty to failing to ensure a planned and organised work system without risks to employees; failing to provide a safe place of work and failing to adequately supervise workers as a consequence the fatal accident occurred.

Judge Codd said the State had led evidence which was contradictory in that three of four witnesses who could give any sort of expert evidence had given evidence that would tend towards the Council being not guilty of any offence.

The only person who gave evidence tending towards guilt was Health and Safety Authority (HSA) Inspector David Barry.

Dealing with whether the Council had failed to provide supervision over the road crew, the Judge indicated she was mindful of the family of the deceased man and noted that they were in court during the entire trial.

She said the State had urged on her that at the height of the evidence there was a lack of supervision. This was not borne out by the evidence.

Examining the evidence of Michael Delaney, John Curley and Joseph Power (Acting General Services Supervisor), the Judge said she was satisfied there was a person appointed to supervise and that all of the men were well trained on the systems in place.

On that basis, the Jury would be directed to find the Council not guilty on those two counts.

In relation to the two charges that the Council had failed to provide a vehicle controller, the Judge said that taking the prosecution case at its highest they had only established it was mandatory to have a vehicle controller.

She pointed out that the evidence of Joseph Power and Michael Delaney showed that there was a vehicle controller available.

The SSWP should have been filled out at the start. All of their training showed that was necessary and all of the personnel were responsible.

The overwhelming evidence was that this was a highly-trained crew and the obligations in relation to safety, and one of them acting as vehicle controller, was imposed on all of them.

No blame could be laid on the Council and for that reason she directed the Jury to bring in not guilty verdict.

Judge Codd said the Jury shared her view that this was a very tragic event and she extended sympathy to the Delaney family.

The issue of costs was adjourned for mention on the opening day of the next sessions in October.

On the third day of the trial, HSA Inspector David Barry said he found it surprising that the truck driver reversed a distance of 18 metres uphill to drive over the filled-in pot hole in order to compact the tarmac.

It did not make sense and at first he could not believe it. The driver focused on targeting the pot hole and did not use his second rear mirror.

There was absolutely no supervision on the job, he said. While there was a system of work in place it was ignored or disregarded.

In his opinion the “beeping” of the reversing truck would not have warned the deceased road worker because he was used to hearing it all afternoon.

The truck driver John Grey operated the truck as a “roller” and not as a vehicle. He used the left hand mirror to reverse and the deceased was struck by the right hand side of the truck.

Inspector Barry said he had no criticism of the safety features on the truck. The wing mirrors and safety camera were devices to assist the driver to see a person behind the truck when reversing.

During further cross-examination Inspector Barry said on the day of the accident Michael Delaney was not the “supervisor” on the job. He was one of the most senior men in the crew and was about to fill the SSWP document when the accident occurred.

He agreed that the Waterford County Council safety statement stated that the SSWP firm should be filled out before the start of work and a risk assessment carried out. But the SSWP was only a general statement and was not specific enough.

It was not an “on-the-job” risk assessment that identified hazards and put controls in place. The risks covered the issues of supervision and a vehicle controller.

It was mandatory to have a supervisor and he agreed that Michael Delaney had been taken off another job in Tallow that day and put on the pot hole repair team.

But he was not the supervisor. Nobody was delegated to supervise the job and take responsibility and fill out the paper work.

“Somebody, anybody and nobody were there to take responsibility and that is a recipe for catastrophe because nobody was in charge”, said Inspector Barry.

At the close of the prosecution case, Mr Noel Whelan, BL, for the DPP, told the Jury of seven men and five women that John Grey, the truck driver, was prosecuted in Waterford Circuit Criminal Court last year for dangerous driving causing the death of John Vincent Delaney and recklessly placing at risk the safety health and welfare of an employee.

At the end of that trial the Trial Judge directed that the two charges should not go to the Jury. Instead of dangerous driving causing death, a charge of careless driving was preferred against him and he pleaded guilty to that charge.

M Aiden Doyle, Sc, instructed by Michael Lanigan of Poe, Kiely, Hogan Lanigan, Solrs, were for Waterford City and County Council.

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