Family of man crushed by machine disappointed at fine imposed on business
The family of a man killed after being crushed by a machine whose safety features had been modified against expert advice has expressed disappointment at the 'low' fine imposed on the owner of a sand and gravel business in Kildare over his death.
N & C Enterprises Limited of Kilmeague, Co Kildare, was fined €75,000 at Naas Circuit Criminal Court after the company pleaded guilty to three breaches of the Safety, Health and Welfare at Work Act 2005 over its failure to provide a safe working environment for its staff.
Louie Borges (41) a father of two from Churchview, Kilmeague, Co Kildare was fatally injured at the quarry operated by the accused in Kilmeague, Co Kildare on February 15, 2019.
The court heard Mr Borges was crushed by a machine whose safety features had been modified without the approval of the manufacturer of the equipment whose staff had expressed shock and disgust at the alterations during a visit to the quarry in April 2018.
Mr Borges, a Portuguese national, was killed instantly in an unwitnessed incident when he was crushed by a robotic arm of the machine which was used for wrapping sand and aggregate in plastic after entering an enclosed area.
An inspector with the Health and Safety Authority, Vincent Darcy, gave evidence the equipment was designed to automatically shut down once an access gate was opened.
However, Mr Darcy said two other gates which by-passed the safety mechanism had been added after the machine was first installed in 2017 to allow easier access to clean up material after plastic wrapping was bursting after getting caught in the equipment.
The HSA inspector said an engineer with the equipment's manufacturer had placed locks on the retrofitted gates when he inspected them in October 2018.
Evidence was heard that staff were under pressure to increase productivity and a record 6,000 bags had been packaged on the day before the fatal incident when the normal daily volume was 4,000.
The court heard that the packing facility had subsequently been sold to Kilsaran, while the quarry had been converted to a landfill site, while staff numbers have fallen from 43 to eight.
In a victim impact statement, the deceased's long-term partner, Laura Murphy, expressed concern at how the company had disregarded safety measures at the quarry.
She also claimed N & C Enterprises had shown disrespect as her family had been met with 'utter silence' when none of the company's directors had gone to Mr Borges funeral.
'That hurt more than you will ever know,' said Ms Murphy.
The victim's brother, Nuno Borges, said his brother had taken the difficult decision to leave his son in Portugal to come to Ireland to make a better life for them.
Mr Borges said his family felt 'anger, despair and disbelief' and his elderly parents no longer visit Ireland as it 'hurts too much.'
He said they were very angry with the company and its directors as they had shown no remorse or compassion and had made no offer to support them with funeral costs.
At a hearing of the case last January, counsel for N & C Enterprises, Ronan Kennedy SC offered the company's deep and profound regret for what happened.
Mr Kennedy said one of the firm's directors, Clement Gavin, had been extremely moved by the victim impact statements.
'There is not a day goes by that he wishes he was not more persistent in being more proactive in intervening to address issues flagged to the company,' he added.
He explained that Mr Gavin had not attended the funeral because he was suffering severe mental health issues at the time which had resulted in his absence from work for a lengthy period.
Mr Kennedy said he was instructed to make no excuses for what had happened.
However, he observed that the strained relationship between Mr Gavin and his brother and fellow director, Joe who exited the company had unquestionably contributed to such an unfortunate tragedy.
At a sentencing hearing on Monday, Judge Martina Baxter, said it was a reflection of the deceased's character that he was 'willing to get stuck in' with helping at work.
The court heard he had not been trained on the machine and had been advised by a colleague not to go near it.
Judge Baxter noted that the company had been warned before the fatal incident about concerns how the additional gates by-passed the automatic shutdown safety mechanism.
'It was an accident that had clearly been anticipated and pointed out,' she remarked.
The judge also acknowledged that Mr Gavin had saved the company from a perilous financial situation after his brother had wanted to sell the business.
However, she accepted the company was now a scaled-down version of the business at the time of Mr Borges' death.
Judge Baxter said nobody could not but be moved by the victim impact statements of the deceased's relatives.
'Their loss is monumental and they will never recover. He was a man beloved by all and a vital cog in his family unit,' she added.
The judge said she accepted the remorse and apology of Mr Gavin was sincere and genuine as well as the fact that no disrespect was intended by him towards Mr Borges' family.
Imposing a fine of €75,000 on the company, Judge Baxter noted Mr Gavin had saved it from insolvency but it was a small firm and any financial sanction should not cause undue hardship.
The maximum fine allowed under legislation is €3 million.
'It is vital for companies to ensure they continuously assess and monitor safety features in the workplace,' the judge added.
She allowed N & C Enterprises three months to pay the fine as well as the prosecution's legal costs of €4,057.
Outside the court, Ms Murphy expressed disappointment at the low level of the fine and the prosecution being limited to a corporate entity.
'There were plenty of e-mails and visits that told them they should not be altering anything but they went ahead and kept making it unsafe,' said Ms Murphy.
Her brother-in-law shared the same view, adding: 'What we really wanted was someone to be found responsible and brought to court – not just a company.'
Commenting on the proceedings, HSA assistant chief executive, Mark Cullen, said the fatal incident was 'entirely foreseeable and preventable.'
Mr Cullen said employers needed to ensure employees were not put in danger by unsafe work practices which bypass crucial safety devices.
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