A midlands vehicle testing firm found guilty of breaching health and safety laws in the testing of a school bus subsequently involved in a fatal crash in Offaly has lost an appeal against its conviction.
The bus went out of control near Clara, Co Offaly, on April 4, 2006 in a single vehicle incident which tragically took the life of schoolboy Michael White (15) who died as a result of serious injuries he sustained. The accident was directly linked to a failure of the vehicle’s rear suspension, which caused the back axle to detach while it was being driven with catastrophic consequences.
The Court of Appeal heard that the Mercedes vehicle, which was originally registered in the UK, was carrying more than 30 students on a school run. It had what was called “leaf spring” suspension on the rear axel but, in or around 1991, this was modified or converted in the UK in the knowledge of British regulatory authorities. Thereafter, the bus was registered in Ireland in 2001 and had a Certificate of Roadworthiness, issued by a city or county council, at the relevant time.
O’Reilly Commercials Limited, of Ballinalack, Mullingar, Co Westmeath, had pleaded not guilty at Dublin Circuit Criminal Court to four charges of breaching health and safety laws when carrying out an official test on the bus between August 5 and 6, 2005. The charges, brought under the Safety Health and Welfare at Work Act 1989, had alleged the firm failed to ensure persons were not exposed to risks to their safety or health as a result of the way the test was carried out.
A jury found the firm guilty of failing to note the modified rear suspension system in the course of a test carried out by it, O’Reilly Commercials, between August 5 and 6, 2005. Verdicts of not guilty were returned on the remaining three counts and the company was fined €25,000 by Ms Justice Margaret Heneghan on July 29, 2013.
The Court of Appeal upheld the firm’s conviction on Wednesday, October 3 holding that the trial was satisfactory and the verdict safe. Mr Justice John Edwards, who sat with President of the Court of Appeal Mr Justice George Birmingham and Mr Justice John Hedigan, said the three-judge court had rejected all seven of the firm’s complaints and the appeal was therefore dismissed.
The prosecutions’ case was that the vehicle was tested by O’Reilly Commercials on August 6, 2005 and failed in certain respects (not related to modified rear suspension). It was then re-presented for re-test on September 1 and passed. The prosecution relied primarily on a statement by the Managing Director in the firm, Mr David O’Reilly, to an HSA Inspector in October 2008 in that respect.
The defence maintained that all that had occurred in August 2005 was an informal pre-test inspection to identify issues that required to be addressed. Central to the defence's case was that the test was carried out on September 1, not in August, and as a consequence, the 1989 Act did not apply because by the time the test had been carried out, as contended by the defence, that Act had been repealed.
Counsel for the Director of Public Prosecutions, Caroline Biggs SC, said the test took place on August 6 and the retest was on September 1. Ms Biggs said that statement came “from the horse's mouth” and was evidence on the face of it that the first stage of the test was carried out in August.
She said the date on which the test was carried out was a question of fact for resolution by the jury. The jury knew the significance of the date, Ms Biggs said, and it had been explained to the jury throughout.
In opening its appeal, counsel for O'Reilly Commercials, Seán Gillane SC, said the background to the case involved a “tragic accident” and the death of a young schoolboy. That fact was not lost on the company, who was the authorised tester and had a very good reputation in the testing business, Mr Gillane said.
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