The People (at the suit of the Director of Public Prosecutions) (respondent) v Declan Cullagh (applicant).

Criminal Law - Manslaughter - Accident involving fairground equipment - Applicant unaware of defect in equipment which caused the death of the deceased - Whether applicant guilty of that degree of negligence which was appropriate to sustain a charge of manslaughter - Whether there was evidence on which the jury was entitled to convict.

The Court of Criminal Appeal (Mr Justice Murphy, Mr Justice O'Higgins, Mr Justice Cyril Kel- ly); judgment (ex tempore) delivered 15 March 1999.

The question to be considered was whether the applicant was guilty of that degree of negligence which was appropriate to sustain a charge of manslaughter. What the jury had been asked to consider was whether, having regard to all of the facts of which they had evidence and all of the circumstances, had the applicant so failed in the duty which he owed to the deceased as to be criminally liable for her death. While the applicant was not aware of the defect in his fairground equipment which caused the death of the deceased, there was evidence on which the jury were entitled to convict the applicant.

The Court of Criminal Appeal so held in refusing an application for leave to appeal against sentence.

Brendan Grogan SC and Frank Quirke BL for the applicant; Patrick McCarthy SC and John Walshe BL for the respondent.

Mr Justice Murphy said that the applicant was convicted in Nenagh Circuit (Criminal) Court of the manslaughter of one Marese Egan at the fairground, Borrisokane, County Tipperary. The deceased was being carried on a chairoplane at a funfair which was owned and operated by the applicant. It became detached from the metal arm which held it to the equipment, and she fell to her death.

Mr Justice Murphy said that it was not open to debate that the applicant was guilty of negligence in the civil sense. The issue which the trial judge and, subsequently, the jury had to consider was whether the applicant was guilty of that degree of negligence which is appropriate to sustain a charge of manslaughter. It was a rare form of prosecution and a difficult matter for both the judge and the jury to deal with, but it had been fully addressed and considered.

In his charge to the jury, the trial judge had described it as gross negligence, rather than mere inadvertence which would attract liability in a civil action. He asked the jury to consider whether the prosecution had satisfied them beyond doubt that the accused had little or no adequate regard for his duty of care and so put the deceased at risk in allowing her into the chair on that day without satisfying himself that it was safe and adequate for its purpose.

Mr Justice Murphy said that the equipment itself was 20 years old at the time of the accident. In the three years prior to its purchase by the applicant, it had lain open in the open in a field in County Cork. In his charge to the jury, the trial judge had described it as being in "appalling condition", and nobody could dispute that description. When purchased by the applicant he had taken considerable trouble and time in improving it and rendering it serviceable and operational. However, various parts of the mechanism and structure were manifestly unsatisfactory and unsuitable. Many of these defects were irrelevant to the accident which ultimately happened, but they were indicative of the nature and age of this equipment.

The trial had focused on the nature of the metal tube which supported the chair, or held it in place. There was rust on the exterior of the equipment and on almost every feature of it, but the crucial damage was undoubtedly rust on the inside of the tube. This was magnified by the fact that the tube was open at the top and closed at the bottom so that rain water could percolate in and not escape at the bottom, thereby causing internal rust. The interior of the tube was not visible on any sort of normal inspection. The seat had apparently been bolted onto the metal tube and the width of the bolt would have reduced the amount of metal available to secure the contact and reduce the area which was affected by the corrosion. The particular factor which caused the tragedy would not have been apparent to the applicant, but the applicant was making available for entertainment equipment which was of its nature to some degree hazardous and undoubtedly old. It was in deplorable condition.

Mr Justice Murphy said that it was not open to argument that the applicant owed a very significant duty in both civil and criminal law to the deceased and to others using this equipment. The question was whether or not in all of the circumstances he had discharged those duties. Did he neglect his obligations to the public generally and to the deceased in particular as to sustain and carry the charge of manslaughter? Nobody was suggesting that the applicant was conscious of the fact that rust was eating away at this particular bolt, that it was likely to come undone at any moment, and that the deceased was in jeopardy. What the jury had been asked to consider was whether, having regard to all of the facts of which they had evidence and all of the circumstances, had the applicant so failed in the duty which he owed to the deceased as to be liable criminally for her death.

This was essentially a matter of degree on which the jury had evidence, and on which they were entitled to reach the conclusion which they did. Mr Justice Murphy said that the court was satisfied that it would have been wholly inappropriate for the trial judge to withdraw the case from the jury. The court was also satisfied that there was ample evidence to sustain the conviction of manslaughter. Accordingly, the application for leave to appeal would be refused and the conviction affirmed.

Solicitors: David Hodgins & Co (Nenagh) for the applicant; Chief State Solicitor for the respondent.

Siobhan Stack Barrister