Driver asks for forgiveness as he admits charges in fatal workplace accident

But in the midst of their grief they have called for safety measures to be in place to ensure that no family has to go through the trauma they went through.

"We want to know what happened, we have been waiting five years without answers,” said Jamie Fleming - a brother of the deceased who gave an emotional victim impact statement on behalf of the family and of Mr Fleming’s daughter.

Mr Fleming from Dunmore, Galway was 45 at the time of the accident.

The court heard, during evidence that Tommy Nyland and Andrew Fleming were both working on a road project in Kerry.

Mr Nyland was driving a rubber tyre roller in reverse while Mr Fleming was removing safety signs on the road. He was knocked over by the roller and suffered fatal injuries.

Mr Nyland of Kilnock, Brickens, Mayo (51) came before Tralee Circuit Criminal Court charged with careless driving causing death and a breach of duty under the Safety Health and Welfare Act.

This charge involved placing at risk the safety, health and welfare of a person in connection with work activities, by driving a rubber tyre roller in reverse, while the rear view near side mirror was turned inwards and reversing in third gear and as a consequence Andrew Fleming suffered personal injuries and died.

He pleaded guilty to both charges.

The incident occurred on the the R551 at Meelcon, Cross of the Woods, Tarbert, Kerry on August 11, 2020.

Both men were subcontracted to work with Colas Contracting Ltd at the time of the incident. The company were in charge of road resurfacing works following the laying of cables by the ESB.

The plant equipment and both Mr Nyland and Mr Fleming were supplied or on hire to Colas from Roadcare and were therefore under the direction of Colas Contracting Ltd at the time of the accident.

Colas Contracting was also before the court on two charges of a breach of duty under the Safety Health and Welfare Act. It had previously pleaded guilty to both charges which included that the company as an employer failed to provide a system of work in relation in the resurfacing of the roadway that was planned, organised and maintained and revised as appropriate and as a result Mr Fleming suffered injuries and died. The second related to the failure to conduct work activities safely.

Jamie Fleming said in his victim impact statement that it was “clear there were failings here”.

"Nothing will bring Andrew back but we hope improvements will be made to ensure nothing like this happens again. Safety should be the principle of any project and that everything can be done should be done [for safety],” he said.

The grief-stricken family also said that nobody had set out that morning with the intention of causing the tragic death of Andrew, including Tommy Nyland. They pleaded for Mr Nyland not to be receive a custodial, financial or driving penalty for his part in the workplace accident.

Senior Counsel Lorcan Connolly prosecuting for the State led Garda Daniel O’Mahony in evidence and he told the court the roller was being driven in reverse in third gear at 21km, when the operating manual states it should not be driven in reverse in this gear.

Inspector with the Health and Safety Authority Gerard McSweeney also pointed out in evidence led by Mr Connolly that the roller should be driven and turned around rather than reversed, and this is included in the company risk assessment and procedure but was not followed.

The court also heard that Mr Nyland had no formal training in regard to driving such a machine.

One of the wing mirrors was also turned inwards, so it was not in the correct position to provide an optimal view, the court was told.

It had been knocked in by bushes and had not being refocused, Mr Nyland told gardaí when he was questioned following the incident.

It was determined to be a ‘contributory factor’ in the incident by the Health and Safety Authority.

Mr Nyland was also focusing on ensuring that he did not to go into the traffic, which was being led in convoy on one lane during the works, while reversing the roller.

The machine the court heard can be driven from both sides, and in this case the driver was in the off-side position.

Evidence was also discussed regarding whether or not the reversing beeper was working on the day. During tests following the incident, it appeared to work intermittently, but it could not be determined if it was working on the day or not, the court was told.

Mr McSweeney also told the court that signs should only be removed with all machinery is gone from the road, but that a gouge was being fixed on the road at this time.

He said that while a safety work plan had been prepared, it was not shared with employees, and both the engineer and supervisor had not been on site at the time of the accident.

The cause of death of Mr Fleming was catastrophic trauma due to a crushing incident while working on roadworks, the court was told.

The death has left “hole in the hearts” of the family and their lives have been changed forever following the accident, Mr Fleming said in his victim impact statement.

Mr Fleming told the court that the family had already lived through the loss of their brother in a fatal road traffic accident and then had to face the loss of Andrew.

In a victim impact statement, also read in court by Jamie Fleming, Andrew’s daughter told of her heartbreak and the impact the loss of her father had on her and how he will not be around to see her learn to drive or walk her up the aisle.

"The impact it has had can’t be put into words,” she said.

Mr Nyland got into the witness stand and said he was using this opportunity to say sorry.

"Whatever I say won’t change anything, I can’t put it right. I am sorry from the bottom of my heart,” he said.

“I can’t change what has been done. I wish I could, I hope you can forgive me,” he said.

He also thanked the Fleming family for the compassion they have shown to him.

The court was told he has no previous convictions and is father of two teenage children, and to say he is “overcome with guilt might be an understatement”.

Senior Counsel for Colas Consulting Remy Farrell also offered their apologies to the family. He said the company had pleaded guilty to two causation offences and they fell short of their duties imposed by law and this caused the death of a their loved one.

He said the company was set up since 1981 and has no previous convictions for breaches. It has 70 employees in Galway, Mayo and Roscommon.

Since the fatal incident many steps have been taken by the company to ensure safety is paramount going forward, and these steps were handed into Judge Ronan Munro.

These include the court was told site safety plans, which are not only produced but communicated to all employees and enforced with unannounced weekly site audits. Training is also now key, and a Health and Safety adviser had been recruited.

Mr Farrells also outlined that civil proceedings have bene dealt with, and that the company wish to make a provision for the education of Mr Flemings daughter.

The case was adjourned to next Thursday, July 17 for sentencing.