The first custodial sentence for a breach of the Safety, Health and Welfare at Work Act 2005 was recently imposed by the District Court.
In HSA v Walker1 the defendant was prosecuted for a breach of s11(1)(c)(ii) of the Safety, Health and Welfare at Work Act 2005. It deals with the obligations on an employer when preparing or revising adequate plans and procedures to be followed and measures to be taken in an emergency or serious and imminent danger. In implementing these, the employer must ensure that the numbers of employees designated with implementation and the training and equipment available to its employees are adequate, taking into account either or both the size of and specific hazards relating to the place of work.
In the case before the court, the accused was the captain of a fishing vessel involved in a fatal accident at sea. A crew member was drowned when he fell overboard. The evidence put forward by the HSA included the facts that:
- Although these were available, the crew were not wearing life jackets as they found these awkward to work with;
- The accused had not instructed his crew that there was a legal obligation to wear a life jacket when working on an open deck at sea;
- There was a failure to follow any man overboard procedure;
- No emergency drills had been practiced by the crew.
The defendant accepted responsibility for the accident and pleaded guilty. In mitigation, the court was told that he had been unaware of his legal obligations to put appropriate procedures in place and train his crew. The court was also told that, although he was not a strong swimmer, the accused had entered the water to try to save his crew member and had almost died himself. He continued to suffer from post-traumatic stress disorder following the accident.
Noting the seriousness of the matter, the court imposed a six month custodial sentence with the final two months suspended. Judge O’Shea commented that the lack of appropriate planning had significantly reduced the possibility of a successful rescue here. The case is currently under appeal.
Previously, the general practice of the courts has been to impose suspended sentences for health & safety breaches. However, the custodial sentence handed down here will bring home for employers the gravity with which the courts will approach cases of this nature.