Jersey Unreported Judgments

 

2000/58

3 pages

ROYAL COURT

(Samedi Division)

 

7^th April, 2000.

 

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

                                                      Jurats Potter and Le Breton.

 

 

 

The Attorney General

 

-v-

 

H & V Building Services, Limited.

 

1 count of  contravening Article 21(1)(a) of the Health and Safety at Work (Jersey) Law, 1989, by failing to discharge a statutory duty to conduct the undertaking in such a way as to ensure that employees were not thereby exposed to risks to their safety.

 

Plea:   Facts admitted.

 

Details of Offence:

 

The defendant was contracted by Woolworths in connection with a new heating system being installed at its store.  This work involved dismantling and removing an old boiler.  The company had requested a survey of the boiler room and the boiler itself, particularly for the presence of asbestos.  The survey was carried out, and a number of samples taken.    The test report was misread by the defendant's foreman who failed to note that the boiler itself had not been tested because it was still in use when the survey was undertaken.  On 10^th February, 1999, during the night shift from 6.00pm to 6.30am, three of the defendant's employees began dismantling the boiler without adequate protective clothing, appropriate masks, and being unaware of the presence of asbestos behind the cladding of the boiler.  The boiler room was described as hot, dusty, and poorly ventilated.  The next morning an employee of the main contractor noticed a panel which had come from the boiler room and was lying in the yard outside.   He suspected it was asbestos insulation board.  There was a meeting of  several persons where concern was expressed.  A licensed asbestos remover, who was working elsewhere on the site, confirmed the panel was asbestos insulation board but on reviewing the boiler room, he said that there was no further problem.  Work therefore commenced for a second night with the same employees, one of whom used a large brush to sweep up all the debris on the floor of the boiler room.  The following morning, the main contractor again became concerned and was in contact with the Health and Safety Inspector.  The boiler room was sealed whilst further tests and another survey were carried out.  Asbestos was found in air sample, in the yard, debris on the shop floor over which the panel had been carried, in the gaskets between water pipes and on pipes themselves.  There was a mixture of asbestos debris on the top of the boiler.   The room was environmentally cleaned.  A U.K. Health and Safety Executive Inspector said that the work carried out by the employees would have given rise to a "significant exposure to asbestos".  She further noted that in using a sledge hammer to dismantle the boiler, the asbestos was handled roughly and sweeping up the boiler house floor would have generated a lot of airborne asbestos dust affecting anyone in the room at the time.  It is known that asbestos related disease can take between 15 and 60 years before they materialise but can lead to asbestosis, lung cancer and mesothelioma .  There is no known cure and there are therefore no safe limits of exposure to risk.

 

Details of Mitigation:

 

The facts were admitted as outlined.,   Company had been 31 years in business and this was its first offence.  It's safety handbook warned employees of dangers of asbestos, admitted that human error led to the boiler being dismantled without samples having been taken from its casing.  The licensed asbestos contractor, who was by definition an expert in such matters, had told the defendant that there was no difficulty in continuing the work and instead of preventing the employees from entering for a second night of work, the defendant relied  upon the expert and allowed work to continue.  Asked for the Court to consider £5,000 as being an appropriate fine and made no comment regarding prosecution's application for costs.

 

Previous Convictions:    None.

 

Conclusions:  £10,000 fine; £2,500 costs

 

Sentence & Observations of Court:  £8,000 fine; £2,500 costs

 

                                                        The Court noted that the defendant had fallen below the standards required of the Law in two respects: misreading the survey and secondly allowing work to continue for a second night.  The Court took into account that defendant had been misinformed by the "expert" but primary responsibility still fell on the defendant.

 

                                                                                                   

                                                                          

Mrs S. Sharpe, Crown Advocate.

                                  Advocate J. C. Gollop for the Defendant Company

 

 

 

 

JUDGMENT

 

THE DEPUTY BAILIFF:

 

 

1.             The risk to health through exposure to asbestos during construction work is well known and it is undoubtedly the duty of an employer to take all reasonable precautions to minimise that risk.  On this occasion the employer fell below the standards in two respects.

 

2.             First, when the report from the independent surveyor was received,  which indicated that the boiler should not be dismantled until it had been surveyed, that point was somehow missed and work went ahead.  Mr Gollop has described that as human error.  It was, the Court is satisfied, not deliberate, but nevertheless it was a serious failure.

 

3.             Secondly, after the asbestos had been discovered, work proceeded for a second night.  On the face of it, that was an extremely serious breach.  But Mr Gollop has put to us forcefully the fact that,  prior to that decision to proceed,  a conference was held at which an independent expert on asbestos had been called in by the main contractor and no advice was tendered to the defendant company at that conference that the work should not proceed, the work on the second night being of a different type to that on the first night.

 

4.             We take note that the primary responsibility still fell on the defendant company to safeguard its employees,  but in the light of the point made by Mr Gollop,  we are minded to reduce the conclusions slightly without, I must emphasise, detracting from the clear statement that this Court has made today and on other occasions that breaches of the Health & Safety Law will attract substantial fines.

 

5.             In the circumstances, we impose a fine of £8,000, taking into account the factors I have mentioned as well as the excellent record of this Company for some 31 years and its immediate plea of guilty.

 

6.       We also order it to pay costs of £2,500, the fine and costs to be paid within 30 days.

 

Authorities.

 

 

Health & Safety at Work (Jersey) Law, 1989.  Articles 3,5,21.

 

Asbestos (Licensing) (Jersey) Regulations 1997.

 

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

 

R. -v- Rollco Screw and Rivet Company Ltd, (26^th March 1999) Unreported Judgment of the Court of Appeal of England.