Jersey Unreported Judgments

 

2000/59

4 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-

 

D.A. Richardson, 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 maintain a forklift truck, as far as reasonably practicable, safe and without risk to health of employees.

 

 

Plea:          Facts admitted, except denied that (a) brake pedal loose on its shaft; (b) insecure metal floor with retaining bolts missing.

 

 

Details of Offence: 

 

A fork lift truck belonging to the company overturned..  The employee driving it was killed.  When examined, it had an inoperative hand brake, under-inflated/worn tyres,  lack of lubrication of steering assemblies, insecure metal floor with retaining bolts missing, and a damaged drivers seat.  Defects could not categorically be said to have caused the accident but might have done.  Company had been on notice since 1998 of some of the defects and had not repaired them.

 

Details of Mitigation:

 

Company took responsibilities seriously.  Training given to employees.  Vehicle had been replaced and was to be taken out of service.  Company would be financially stretched by serious fine.  Proceedings pending in Magistrate's Court against principal of company for Motor Vehicle (Construction and Use) offence.

 

Previous Convictions:        None.

 

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

 

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

 

Financial position of defendant may be relevant, but defendant wishing to so argue should provide information to the Court and prosecution, e.g. company accounts.  Company had been on notice of need for repairs.

Obiter:  Concurrent proceedings in Magistrate's Court seemed oppressive:  Attorney General asked to consider.

 

 

 

                                                          The Solicitor General

                                 Advocate N. S. Benest for the Defendant Company.

 

 

 

 

 

 

 

JUDGMENT

 

THE DEPUTY BAILIFF:

 

1.             This fork-lift truck was clearly in a poor condition.  Among other defects it had an inoperative hand-brake and under-inflated and worn rear tyres.  What makes it more serious is that regular examinations by the insurance company employed by the defendant company had shown defects which had not been addressed.  For example reports in 1996, 1997 and 1998 all referred to the deteriorated driver's seat and significantly the report of the 12^th August, 1998, stated that the defective hand-brake should be repaired within one month, but nothing was done and this accident of course occurred in February 1999. Indeed we have heard that there had been no service by SGB since November, 1996, although - we were told - routine matters were attended to by the company's own staff.

 

2.             The Court has made clear in recent cases that historically the fines for breaches of the Health & Safety at Work (Jersey) Law 1989 have been too low and that they are to be increased.  The objectives of the legislation and prosecutions thereunder are to provide a safe environment for those who work and fines need to be large enough to bring home the message that that must be done.

 

3.             In this case, Defence Counsel at one stage indicated that, as this was a small family company, the fine should reflect this but no financial information was put forward.  The Court wishes to take the opportunity of quoting an extract from the decision in R-v- Howe & Sons (Engineers) Limited (1999) 1 All ER 253, on what course must be followed if defendants wish the Court to take account of their means:

 

 

 

 

  "Any fine should reflect not only the gravity of the offence but also the means of the offender and this applies just as much to corporate defendants as to any other.  Difficulty is sometimes found in obtaining timely and accurate information about a corporate defendant's means.  The starting point is its annual accounts.  If a defendant company wishes to make any submission to the Court about its ability to pay a fine it should produce copies of its accounts and any other financial information on which it intends to rely in good time before the hearing, both to the Court and to the prosecution.  This will give the prosecution the opportunity to assist the Court should the Court wish it.  Usually the accounts need to be considered with some care to avoid reaching a superficial and perhaps an erroneous conclusion.  Where accounts or other financial information are deliberately not supplied, the Court will be entitled to conclude that the company is in a position to pay any financial penalty it is minded to impose.   Where the relevant information is provided late it may be desirable for sentence to be adjourned, if necessary at the defendant's expense, so as to avoid the risk of the Court taking what it is told at face value and imposing an inadequate penalty".

 

4.             On reflection Defence Counsel in this case withdrew any suggestion that the case should be adjourned for financial information and was content that the Court should proceed today without such information.

 

5        Counsel then went on to say that, in the light of recent cases, he thought there was a starting point of some £4,000 to £5,000 per count.  We have to say that this is an erroneous basis on which to proceed. The Court has to consider the facts of each case and the seriousness of the breach and that is what determines the level of sentence.   There is no tariff nor does the Court consider technical matters such as the number of counts.

 

6.       Counsel did however point to a number of matters of mitigation.  This is the first offence by the company.  It pleaded guilty.  It co-operated fully with the enquiry and it has clearly made considerable efforts since the accident to improve its safety procedures. 

 

7.       Furthermore, as the Crown has accepted, there is no evidence that the defects in this fork-lift truck were the direct cause of the accident.   Nevertheless, as we say, the Court has made it clear that the fines must be at an appropriate level in these cases and has given notice of an increase.

 

8.           Having regard to all the mitigation we are prepared to reduce the fine to £8,000.  We also order the payment of costs of £2,500.

 

9.       We do finally say this, Madame Solicitor: from what we were told - and of course that may not be wholly accurate - it would seem to us extremely oppressive for there to be a prosecution of the individual defendant in relation to the same defects in the fork-lift truck and we hope the Attorney General will look at the matter.

 

 

 

 

 

 

Authorities.

 

 

Attorney General -v- C. I. Bakery, Ltd. (21^st February 1997) Jersey Unreported.

 

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

 

Attorney General -v- Hacquoil & Cook, Ltd. (1^st May 1998) Jersey Unreported.

 

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

 

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

 

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

 

R -v- Howe  Son (Engineers) Ltd. [1999] 1 All ER 253.