State seeks larger fine for company convicted over drowning of Clare stonemason during bridge works

A FINE of €25,000 for health and safety breaches imposed on a company which supplied a crane involved in an fatal incident in Limerick in which two stonemasons drowned was too low and should be increased, the State has argued. 

Bryan Whelan (29) of O’Briensbridge, County Clare and TJ O’Herlihy (36), of Castleisland, County Kerry died after the steel cage suspended over the river Shannon plunged into the water on August 29, 2015.

The two men and a third colleague, Paul Murphy who lives in Askeaton, County Limerick had been carrying out cleaning and repointing work on Thomond Bridge in Limerick city at the time. 

All three men were attached to the basket by a safety harness. Mr Whelan and Mr O’Herlihy both drowned as they could not escape when it entered the water. Mr Murphy managed to free himself from his harness and was rescued.  

Palfinger Ireland Ltd, of Church Hill, Cloncollog, Tullamore, County Offaly was fined €25,000 at Limerick Circuit Court on October 7, 2022 after the company pleaded guilty to breaches of the Health and Safety at Work Act. The sentencing jurisdiction of the court was an unlimited fine. 

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Palfinger had supplied the crane in use on the day of the incident to Nationwide Crane Hire Ltd - which has an address at Dock Road, Limerick - in 2003. 

Nationwide Crane Hire also pleaded guilty to breaches of the Health and Safety at Work Act and the company was fined €200,000. The maximum fine the court could have imposed in that case was €3 million. 

Limerick Circuit Court heard that a safety mechanism on the crane that was holding the metal cage containing the two men and their co-worker had failed to operate. The defective overload protection safety device for the winch on the crane failed and this led to the winch snapping. 

The prosecutions against Palfinger and Nationwide were brought following an investigation by the Health and Safety Authority. 

The Palfinger Crane used by Nationwide Crane on August 29, 2015 had been supplied by Palfinger. A deficit in the information supplied with the crane by Palfinger and used by Nationwide Crane on August 29 led to the prosecution of Palfinger. 

At the Court of Appeal this Monday, Shane Costelloe SC, for the Director of Public Prosecutions, argued the sentencing judge Tom O'Donnell had "erred" in determining that Palfinger’s degree of culpability should be reduced because the nature of the offence was only discovered after the incident giving rise to the fatal injuries and that this in some way amounted to a mitigating factor. 

He also submitted that, in determining the gravity of the offence, the sentencing judge failed to identify a “headline” figure at which the fine should be fixed prior to considering such mitigating factors as were identified by him. 

Counsel said in determining the gravity of the offences, with reference to the culpability and the harm done, the sentencing judge erred in principle in failing to have sufficient regard to the aggravating factors in the case. 

Court of Appeal President Mr Justice George Birmingham said as he understood it, two companies were prosecuted arising from the incident.  

He said the charge against Nationwide related to August 29, 2015 but the appeal before the court related to Palfinger, which wasn’t charged in relation to August 2015 but. The company was before the court because a manual it provided in 2003 had a “missing chapter”. 

“So surely the trial judge had to differentiate in a very significant way, because these were two different offences?” he asked. 

Mr Costelloe agreed the offences were different but said the offence against Palfinger was recognised by the trial judge as one which was “extremely serious”.

He said Judge O'Donnell had failed “on a number of grounds” to apply the applicable principles and had entered into an error of law. 

Mr Costelloe said the trial judge had identified a headline sentence in respect of Nationwide but did not do so in respect of Palfinger. Counsel said the judge appears to have set the headline fine at €300,000 for Nationwide which was then reduced to €200,000.  

He said the trial judge had also erred in principle when he found that the fact the “missing chapter” did not come to light until after the incident was a mitigating factor. 

“That ignores the fact that the company chose to plead guilty to the offence,” Mr Costelloe said. “They admitted culpability.” 

He said the fact the trial judge made a finding that this was a mitigating factor was “completely misconceived”.  

Mr Justice Birmingham said he suspected what the judge was really doing was addressing the matter of causation.  “The passage of time means that the direct link in the failure to provide a chapter in the text and the incident in 2015 failed to make a causation link,” he said. 

“I’m not trying to avoid the fact that 12 years had passed, I’m not ignorant to that,” Mr Costelloe said. However, he said the fact the missing chapter didn’t come to light until after the incident “cannot be a mitigating factor”. 

He said part of the manual had not been supplied and for 12 years the people operating the crane did not have that part of the manual before them. 

“What I can say is, and I hasten to add I’m not being trite here, these things work until they don’t. These things are fine until they break,” Mr Costelloe said. 

“This part of the manual telling the operator what to do on a daily basis was not present…As to what it meant we’re speculating I accept that. There were many instances where the safety mechanism did work. We do not know what not having that part of the manual available to the operator meant on the day.” 

He submitted that the fine imposed in this case was “simply too low”. 

“We have a situation here where we don’t know where the sentencing judge started. We don’t know what his headline starting point was for the fine,” he added.

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Michael Collins SC, for Palfinger, said the argument that there was no headline sentence set was a criticism of “style over substance”. 

He said the sentencing judge took into account all of the factors in the case including the circumstances of the accident, the victim impact statements in the case, mitigating factors and the concept of proportionality. 

Mr Collins said the document in question was an operating manual. 

When the crane and the manual was delivered, the person operating the crane was shown all the necessary procedures to operate the crane, counsel said. 

He said it was “not just a case of there’s the keys, best of luck”.  

Mr Collins argued that the fact that an omission was discovered after the incident was relevant. He said the crane had operated well for 12 years and had been serviced regularly. 

He said the question the judge had to grapple with was what was the implication of the chapter being omitted in the overall context.  

“It was in weighing the culpability of the crane operators and the crane providers that he came to this conclusion,” counsel said, adding in those circumstances he submitted there was no error in principle. 

After rising for a short period, the three-judge court indicated it would reserve judgement in the case.