The scene at Kilbride Plaza in December 2019
OFFALY County Council has been fined €90,000 for breaches of health and safety regulations which left a council employee paralysed after a cast iron light column fell on him.
The incident happened in January 25, 2019, when council workers were removing a light column in the Kilbride Plaza car park in Tullamore. Michael Hogan from Clonaslee was standing nearby and was hit by the pole as it fell.
The local authority was charged with five counts of breaches under the 2005 health and safety act. They pleaded guilty to two counts which were accepted by the prosecution and a nolle prosequi was entered on the remaining three.
In passing sentence on Tuesday December 21, Judge Francis Comerford said the case differed from other criminal cases in that the council did not set out to deliberately harm anyone. Neither did they cut corners for financial gain.
However, he said the council hadn't taken any consideration of how people could be harmed when the pole was being removed and it was an ''institutional failure.'' He said they had failed in their duty of care to Mr Hogan who had suffered terrible life altering and life reducing injuries as a consequence.
He said the accident has been catastrophic for Mr Hogan and his family and he must mark the seriousness of the offences. He said the penalty will not improve things for anyone but it will mark the significance and the failure of Offaly county Council to meet its responsibilities. The judge said the council had failed to conduct an inquiry to identify the hazards involved in the removal of the pole. He said it was not the fault of any of the workers involved in the removal but it was because no safety plan had been put in place.
He noted that Mr Hogan didn't have to be at the location, but there was nothing wrong with him being there as he may have been called on in the future to undertake a similar job.
At a hearing last Friday's December 17 the court heard the offence carries a sentence of two years in prison or a €3m fine.
However Judge Comerford said he had to take into account the ability of the offenders to meet a large fine. He said it would not do any good for the family and it would leave other county council areas short and the public would suffer.
He said the mitigating factors was the early guilty plea and the steps the council had taken to mitigate some of the harm to Mr Hogan by providing a house and adapting it to meet his needs. He noted that Offaly County Council had no previous convictions. They had also fully cooperated with the Health and Safety Authority. But Judge Comerford said it was ''not at all impressed'' that they were not accepting full liability in a related civil case.
In breaking down the €90,000 fine Judge Comerford said €50,000 is for failing to carry out a risk assessment before undertaking the work and €40,000 was for the overall negligence by the council. He also awarded costs of €4,000 to the office of Director of Prosecutions and €1,379 to the Health and Safety Authority. All fines must be paid within three months.
Background to the case
On Friday December 17 last, Tullamore Circuit Court heard that on January 23, 2019 a Council worker discovered a loose light post in Kilbride Plaza. When he put his hand to the pole it moved. He rang his supervisor expressing concern. He was told to put cones around the pole along with a barrier. An electrician was contacted.
The electrician was not available until Friday January 25, however, on his way home from work that Thursday evening he went to inspect the pole and he saw that it was unsteady. He removed the fuse and made the cable safe. He formed the opinion that the pole would have to be removed. He disconnected the power source.
On Friday, January 25, 2019 a JCB operator from a local company who regularly carried out work for the council, was hired to pull the pole from the ground. There were other council employees present on the day.
Michael Hogan was not part of the team involved in the removal of the light column. He and another man had gone to inspect a parking metre in the Texas Car park which was out of order. They then asked the electrician to take a look at it. Afterwards they came back to Kilbride Plaza.
The JCB operator attached a chain to a D-shackle on the digger and the chain was then attached to the pole. He shouted at everyone to move back. Michael Hogan was described as standing two car parking spaces away from the pole which was 4 metres high. However the digger operator had difficulties pulling the pole out of the ground and so the chain was moved lower down on the pole by some of the other workers as they felt there would be less risk of it slipping.
The digger operator once again attempted to pull the pole, however, this time it sprang out of the ground and hit Mr Hogan on the neck and he fell to the ground. An ambulance was called and while they were waiting the other workers placed bandages around Mr Hogan’s head under instructions from a paramedic. Mr Hogan was removed to hospital and the court heard that 4 weeks later he recalled waking up in the Mater Hospital.
In her evidence to the court Lillian O’Neill, Inspector for the Health and Safety Authority (HSA) said when she inspected the site she saw the JCB with 5 chains attached to the bucket and one on the pole. She noted that the base of the pole appeared to be sheared and there were 4 bolts at the base with one looking as if it had previously been sheared. She took a number of pictures at the site. In addition she commissioned structural engineer Michael Slevin.
In his report Mr Slevin described the pole as having a base plate which was bolted to cement. The bolts were not removed before work began. Ms O’Neill said if the pole was inspected it would have been evident. She said that typically poles would have a root mounted column which could be pulled up from the ground. However, she said this particular pole should have been supported while the bolts were removed and choke slings placed high up on the light column would typically be used in this instance. She said the methodology was fundamentally flawed and there was no safety system, work plan, or risk assessment in place.
Judge Francis Comerford commented that someone must have known what would happen. However, Ms O’Neill said it wasn’t thought through and there was no plan. She said no exclusion zone had been set up in the car park which would have ensured no one could enter the area.
She recommended to the council that a safety plan specifically for the removal of poles be adopted. The council accepted the recommendations and all staff have since been informed.
A medical report from Orthopaedic consultant Dorothy Neil read by Mr White stated that Mr Hogan, a 57 year old man, had significant head and neck injuries. He is now paralysed from the chest down. He has very limited ability to move his hands and has a high level of dependency. He had surgery in the spinal unit of the Mater Hospital, he was then transferred back to Tullamore hospital where he remained for two months before being transferred to the National Rehabilitation Hospital. Any further recovery in years to come will be slow and protracted and it is difficult to predict what recovery will be like. He is wheelchair bound but because of weakness in his hands it makes it difficult. He will never return to manual work and while he may be able to do sedentary work, it is unlikely.
An updated medical report from Dr Kearney of Church Avenue, Tullamore, confirmed that Mr Hogan had reduced use of his hands and needs two people to move him in the bed, he also needs two people during the day. He can feed himself and can use the remote control for the television. He also suffers severe spasms in both legs which keep him awake at night. His cognitive functions are normal. But he has bladder and bowel problems.
He has no issues breathing and he remains calm and accepting. Mr Hogan had previous medical problems including a liver transplant and hypertension. He was not in court for the hearing and is currently in Tullamore hospital as he experiences ongoing issues.
His children wrote that they had moved into a new house provided by Offaly County Council which had to be adapted to meet Mr Hogan’s needs. They said his care is complex and he is at a much higher risk of being hospitalised if he gets an infection. His diagnosis is severe but he has adjusted. He suffers from depression but tries to be positive. When he left work that morning little did we know that life would change forever, Kevin White BL prosecuting, read on behalf of the family.
Daily living for the family is quite difficult. Mr Hogan needs two people to get him out of bed, and he needs an electric wheelchair.
The birth of his granddaughter Sofia has brought a lot of joy to his life but he will never be able to hug her. He has also suffered the loss of his hobby, pitch and putt which he had been involved in for 30 year. He travelled all over the country with the club.
He was a very hard working man and he misses the social aspect of his job. He cannot sit for longer than three hours in his wheelchair without experiencing pain.
The family said their new house doesn’t feel like a home as they have three visits from carers every day. Mr Hogan is also unable to visit his siblings in Clonaslee. Michael Hogan said he wished people could experience what one day in his life was like so they could see what he goes through. His family said he has a great sense of humour and is very kind. He is known as a gentle giant and is the strongest person they know.
David Staunton BL for Offaly County Council said everyone in the council was shocked and had cooperated fully with the investigation. They had also instigated all of the HSA recommendations.
They had made the incorrect assumption that the pole was a rooted column and believed that it would easily be removed.
Mr Staunton said Offaly County Council had an impeccable record regarding health and safety standards. He described it as a small council where everyone knew one another. He said everyone felt remorse from the lowest to the highest. He said a mark of how serious they take the matter was evident in that the Chief Executive Anna Maria Delaney was present in court as was the Director of Services Tom Shanahan and Senior Executive Engineer John Connelly along with the head of finance. He said they wanted to extend their deepest sympathy to the family. He said they were in a position to secure a home for Mr Hogan but knew that his life had been turned upside down and he needed constant care. They have also provided €200,000 to the family.
Mr White said the offence carries a jail sentence of two years or a fine of €3m.
Responding, Mr Staunton said Offaly County Council has a €1.6m deficit. He said they were at a loss of rates from the closure of Bord na Mona. He said it is not a significant or well funded council. He said there had been a sense of genuine shock and heartfelt concern from Chief Executive Anna Marie Delaney to Mr Hogan and all they can do is make him as comfortable as possible.
Judge Comerford said there had been a terrible breach of health and safety standards and there should have been a prepared plan. He said there appeared to be no thought given to how the pole would come out of the ground.
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