Jersey Unreported Judgments

2000/216

3 pages.

ROYAL COURT

(Samedi Division)

 

3^rd November, 2000

 

Before:           M.C .St.J. Birt, Esq., Deputy Bailiff,

assisted by Jurats Rumfitt and Allo

 

 

                                                     

The Attorney General

 

-v-

 

The Beaufort Hotel Company Limited

 

 

1 count of contravening Article 21(1)(a) of the Health & Safety at Work (Jersey) Law 1989, as amended, by failing, as an employer, to conduct its undertaking so as to ensure, so far as was reasonably practicable, that persons not in its employment were not thereby exposed to risks to their safety.

                 

Plea:         facts admitted.

 

Details of Offence:

 

On 7^th November, 1999, a Mr Adrian Rivett attended a function at the Beaufort Hotel, Green Street, St Helier, and he parked his car in the upper car park of the Beaufort Hotel.  It was approximately 4.50 p.m. and Mr Rivett noticed that it was rather dark and this was the first time that he had parked in the car park.  Having got out of his car and locked it, he turned to the left and took one step with his right leg and, on taking his next step, he tripped and fell to the ground.  He lay there in excruciating pain for approximately four or five minutes before other people known to Mr Rivett arrived and summoned an ambulance.  Mr Rivett sustained a fracture of the left hip which required surgery involving the fixing of a screw and plate.  The medical evidence was that he was making good progress towards recovery from his injury.  One of the witnesses described the surface of the car park as being "like a lunar landscape with puddles, lumps ... the lumps are also hard and do not give ...".  The defendant company had purchased the upper car park as part of a property deal in 1990, and, prior to that date, it had leased the car park.  The car park had been resurfaced in 1989 due to water penetration problems.  However, at an unspecified time after 1990, "bumps" began to appear in the car park.  The defendant company was aware of the extent of the problems caused by the "bumps" and had intended to resurface the car park during the winter of 1999.

 

Details of Mitigation:

 

Prompt admission of responsibility.  It took steps to remedy the defect and stop all access to the upper car park.  The company had been under the same ownership for a period in excess of 19 years and this was its first prosecution under the Health and Safety Law.  Despite the condition of the upper car park, no "mishaps" had been reported to the Health and Safety Inspector prior to the incident with Mr Rivett.  The defendant company had been fully co-operative with the Health & Safety Inspectorate in the investigation.  The defendant company took Health & Safety matters seriously and it was a matter of regret that it has lost its good record.  It was contended that the Crown's conclusions were excessive having regard to the low level of risk.  Information was provided to the Court as to the number of persons having visited or used the upper car park without incident.  In contrast to other Health & Safety cases, the element of risk and the likely degree of harm was significantly lower.  It was also contended that all car parks do, over time, develop potholes, etc, and therefore become hazardous.  Defence counsel contended that a more appropriate fine would have been £3,000.

 

Previous Convictions:   None.

 

Conclusions:               £5,000 fine; £2,500 costs

 

Sentence & Observations of Court:    conclusions granted.

 

The Court has said on a number of occasions that fines for Health & Safety infractions must be set out at a level to bring home to employers their duty to employees and those who visit their premises.  The photographs presented to the Court clearly showed the extent of the water penetration problem and it must have been known that the "bumps" were a potential risk and could give rise to injury.  This was not a case where the defect in the car park would have suddenly developed, but rather would have gradually got worse over a period of time.  However, the defendant company had the benefit of a number of powerful points of mitigation including pleading guilty, first offender and the fact that the defendant company was going to rectify the matter in any event.  Many people had used the car park without anyone suffering any injury and the company did have an exemplary record on Health & Safety matters.  The Court also accepted that the degree of risk was not as severe as in some cases.  There was, however, a clear duty on the company and the Royal Court agreed with the Crown that the defendant company had failed to comply with its duty for a not insubstantial period of time.  In all the circumstances, the Royal Court concluded that the conclusions sought were correct.

 

                                               J.C. Gollop, Esq. Crown Advocate

                                 Advocate A.P. Roscouet for the defendant company.

 

 

JUDGMENT

 

THE DEPUTY BAILIFF:

 

1.                  The Court has said on a number of occasions recently that fines for breaches of the Health & Safety Legislation must be set at a level such as to bring home to employers their duty both to their employees and to those who visit their premises.   Looking at the photographs it must have been obvious to this company that the very uneven nature of the surface of the car park was a potential hazard and could cause injury of the sort suffered by Mr Rivett.  This was not a case where the problem arose suddenly.  It had clearly developed over a period and had been getting gradually worse.

 

2.                  But, as Miss Roscouet says, there are a number of powerful points of mitigation.  The company had pleaded guilty and had accepted its responsibility immediately.  It had also taken steps to rectify the matter and in fact was going to do that in any event in the winter of 1999 before the accident occurred.  Most significantly from the company's point of view, many people had used the car park during the season and before without anyone suffering injury.  Furthermore, the company has an exemplary record so far as health and safety matters are concerned.  Miss Roscouet also urges that the degree of risk in this case was not as serious as in some in that the risk to be guarded against was someone falling over and injuring themselves as opposed to perhaps being exposed to live electric cables or other such risks, and we accept that that is the case. 

 

3.                  Nevertheless, there was a clear duty on this company to take the proper steps to safeguard visitors and we agree with the Crown that it failed to do so over a not insubstantial period.  Taking into account the policy of the Court which I described at the beginning, that fines of this nature must bring home the seriousness of the situation, we think that the Crown's conclusion are right.

 

4.                  So if you would stand up now.  The sentence of the Court is that the company will be fined £5,000 and ordered to pay costs of £2,500.

Authorities

 

 

Attorney General -v- Regal Construction (Jersey) Limited (21^st August, 1998) Jersey Unreported.

 

Attorney General -v- Cowley Farm Limited (7^th August, 1998) Jersey Unreported.

 

R. -v- F. Howe & Son (Engineers) Ltd. C.A. [1999] 2 All ER 249.

 

Attorney General -v- Stansell QVC., Ltd. (15^th October, 1999) Jersey Unreported.

 

Attorney General -v- H & V Building Services, Limited (7^th April, 2000) Jersey Unreported.

 

Attorney General -v- D.A. Richardson, Limited (7^th April, 2000) Jersey Unreported.

 

Attorney General -v- Ernest Farley and Son, Limited (14^th April, 2000) Jersey Unreported.

 

Attorney General -v- Ainscough (3^rd July, 1992) Jersey Unreported.

 

Attorney General -v- Jersey New Waterworks Company Limited (28^th November, 1997) Jersey Unreported.

 

Attorney General -v- New Lyn Apartments (12^th December, 1997) Jersey Unreported.