HSA Allowed to investigate Accident at Roadworks Site

Apr 17, 2013

The Health and Safety Review have reported that The President of the High Court has held the HSA is entitled to carry out an investigation in an accident in which a young driver was fatally injured at a roadworks site which had been closed for a weekend.

The case arose as a result of an accident at around 10pm on the evening of September 29th 2012. In his judgment Mr Justice Nicholas Kearns said that on that evening the driver of a vehicle collided into cones on a traffic island, on a road. This caused him to lose control of his vehicle which left the roadway and overturned, causing him fatal injuries.

Summing up the facts of the case, Mr Justice Kearns said that in August 2012, the local authority commenced construction works on the N72 in Rathmore, County Kerry for the purpose of installing road calming measures. The roadworks were scheduled to last for 20 weeks. However on Friday September 28th the local authority put in place a traffic management plan for the weekend during which roadworks would not be taking place. This involved re-opening the road to two-way traffic, albeit that the roadway remained dressed with cones and other insignia indicative that roadworks were taking place. In particular, the judge said, cones were located in front of a traffic island in the middle of the roadway. It was into this traffic island and cones that the driver crashed.   

The HSA was notified of the accident by the local authority on October 1st and on that date an inspector from the Authority carried out an inspection at the site. On October 2nd the HSA notified the local authority that it intended to carry out an investigation in to the accident. The local authority objected and was granted leave by the High Court to bring a judicial review application. The HSA investigation was “stayed” pending the outcome of the judicial review.

The local authority’s arguments
The local authority argued that the HSA had no authority to investigate the accident, as the place of the accident was not a place of work. It ceased to be a place of work when the workers left the site on the afternoon of September 28th, because the roadworks were shut down and the road reopened to the public. There were no employees at the locus of the accident at the time of the accident. The barriers protecting the working area had been removed and traffic cones had been installed to guide traffic.

The local authority further argued that the “core purpose” of the SHWW Act 2005 is the protection of workers. It also argued that the definition of an accident in the Act, does not ordinarily include a third party motorist, given that the motorist was driving on a public road at the time of the accident    



The HSA’s arguments
When its inspector went to the scene of the accident, he observed unfinished roadworks, a site compound, road work barriers and traffic cones, a construction plant and unfinished, partly constructed, traffic islands.

The essence of the HSA case was that the locus of an accident remains a place of work for so long as works are continuing. For the purposes of the Construction Regulations the locus of the works remains a construction site until such time as the construction work is completed. Notice of the construction work had been given by the local authority to the HSA.

While the general purpose of the SHWW Act 2005 is to protect workers, section 12 provides expressly that employers have a duty to ensure the health and safety of individuals not in its employment.

Judgment
Delivering judgment in favour of the HSA and holding that it was entitled to investigate the accident, Mr Justice Kearns distinguished the case from the earlier Cork County Council and Donegal County Council cases. He said “a completely different situation exists in the present case. By no stretch of the imagination could it be suggested that the works had been completed”.

All the documentation made it clear that the works were intended to last for a period of 20 weeks and had merely been suspended for the weekend when the accident occurred. There was no question of the workers having left the place of work or having completed their functions. He was, he added, quite satisfied that the roadway where the accident occurred was “very much still a place of work in the same way that a building site retains that character over the course of a weekend when work is temporarily suspended.

Saying that the Construction Regulation can hardly be in doubt in this case, having regard to the fact that the local authority had prepared a “Preliminary Safety and Health Plan in accordance with regulation 16 of the Construction Regulations (as amended), he said it was “not clear” to him the basis on which the local authority contended the HSA “has no powers of inspection on foot of the 2006 Construction Regulations as amended”  

Possible difference
However, in a concluding remark, which opens up the possibility of further litigation, Mr Justice Kearns observed that he might have reached a different conclusion “if the works had been suspended for a period of weeks or months during which time the roadway might be characterised as having returned to its normal status. (Kerry County Council v HSA: High Court, Dublin, April 2013.

The Health and Safety Review will carry a full report on the judgment in the May issue, which goes to press on April 26th).
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