Jersey Unreported Judgments

2000/70

5 pages

ROYAL COURT

(Samedi Division)

 

14^th April, 2000.

 

Before:    M.C. St.J Birt, Esq., and

                                                      Jurats Rumfitt and Le Brocq.

 

 

The Attorney General

 

-v-

 

Ernest Farley and Son, 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 persons not in its employment who might be affected thereby were not exposed to risks to their safety.

 

Plea:   Facts admitted.

 

Details of Offence:

 

The company was carrying out work on the Gas Works gyratory road scheme in accordance with method statements prepared by the Public Services Department detailing how work was to be carried out.  Having been aware that there were "live" gas mains and electric cables in the area being excavated, the Company was advised that the excavation should be carried out by hand removing earth with picks and shovels and that the exercise required caution.  The labourers unexpectedly encountered concrete, and the foreman provided them with a pneumatic road breaker.  Using this tool, one of the labourers pierced a gas pipe, causing an estimated release of 8,000 cubic feet of gas.  There was the risk of a fireball or explosions and anyone in the vicinity of the gas leak such as workers and members of the public would be exposed to the risk of death or potentially very serious personal injury.  A prohibition notice had been issued by a Health and Safety Inspector to the Company three months previously following a similar failure to abide by the Public Services Department method statement.  In addition there was inadequate site supervision at the time.

 

Details of Mitigation:

 

Company had 60 years unblemished safety record and should be given credit for that record.  Unexpected problem had been encountered.  The work to be done was required to be completed urgently.  Internal steps had been taken by the Company since the incident including the issue of instructions in the native tongue of the labourers.  No deliberate attempt to break the law. No risk was run in order to save money.  The Company had been let down by the site foreman.  Insufficient credit had been allowed for the guilty plea.  It was unfair to condemn a defendant on the grounds of death or personal injury which might have occurred but had not.

 

Previous Convictions:

 

One previous conviction for failure to shore a building causing collapse of a wall in 1986, which was disregarded for the purpose of this prosecution.

 

Conclusions: £25,000 fine; £2,500 costs.

 

Sentence & Observations of Court:

 

Conclusions granted.  A clear breach of the Company's duty which gave rise to potentially very serious situation.  Objective of the legislation is to achieve a safe environment and the fine needs to be large enough to bring the message home.  The degree of risk involved here was serious.  The principles of R -v- Howe were accepted and applied.

 

 

The Attorney General.

Advocate A.P. Roscouet for the Defendant Company.

 

 

JUDGMENT

 

THE DEPUTY BAILIFF:

 

1.      This was a clear breach of the Company's duty under the Health and Safety at Work (Jersey) Law, 1989 and gave rise to a potentially very serious situation.

 

2.      There had been a previous incident in March, 1999, when an excavator operated by an employee of a sub-contractor of the Company damaged a live gas main.  This resulted  in the Health and Safety Inspector issuing a prohibition notice.  The Company had responded at that stage to say that the procedures set down by the Company and the site specifications would be rigidly adhered to in future.

 

3.      This incident took place some three months' later.  The agreed method of proceeding approved by Jersey Gas and by the Public Services Department was that excavation in this area should be by hand because it was known that there were live gas mains in the vicinity.  Despite this when, on the 3^rd July, an area of concrete was encountered, the site foreman of the Company authorised the use of a pneumatic road breaker.  Shortly afterwards this duly fractured a gas pipe with the consequences that the Attorney General has outlined involving the need to call the emergency services.  It was fortunate that there was no explosion of the gas which leaked out from the pipe.

 

4.      The Court has said on several occasions recently and the English Court of Appeal has also said in the case of R -v- F Howe & Son (Engineers) Ltd (1999) 2 All ER 249 that, historically, fines for breaches of the health and safety legislation have been too low.  Interestingly, in the case of Howe, it is stated at p.253J that in 1997 - 1998 the average fine per offence in the Crown Court was some £17,768 and it was these sort of figures which the English Court of Appeal said were too low.

 

5.      The Court thinks that it would be helpful to adopt and specify the principles which we extract from Howe:

 

"In determining the appropriate fine for an offence under the Health and Safety at Work etc. Act 1974 and related regulations, aggravating features include: death resulting in consequence of a breach; a failure to heed warnings; and a risk run specifically to save money.  Mitigating features include: prompt admission of responsibility and a timely plea of guilty; steps to remedy deficiencies after they are drawn to the defendant's attention; and a good safety record.  Other relevant matters are: the degree of risk and extent of the danger created by the offence; the extent of the breach; and the defendant's resources and the effect of the fine on its business.  While it is impossible to lay down any tariff or to say that a fine should bear any specific relationship to the turnover or net profit of the defendant, since the objective of prosecutions for health and safety offences in the workplace is to achieve a safe environment for those who work there and for other members of the public who may be affected, a fine needs to be large enough to bring that message home where the defendant is a company not only to those who manage it but also to its shareholders."

 

6.      In this case the Attorney General pointed to certain aggravating features.  First, he referred to the serious nature and extent of the breach and in particular the degree of risk and the extent of the danger caused.  This could have led to an explosion with serious injury to employees and members of the public.  It is fortunate that it did not.  Secondly he points out that this occurred only three months after the previous incident which had led to the prohibition notice by the health and safety inspector.  Thirdly, he says that the Company's response on site at the time was not organised satisfactorily.  We have heard differing submissions as to exactly what efforts the Company took to notify the Gas Company and the emergency services but what is clear is that it was members of the public who notified those services before the Company.  Furthermore, when the Fire Service arrived a sub-contractor ignored their instructions and continued to try to repair the leak.  The Company did not take steps to ensure that this did not occur.

 

7.      In mitigation Miss Roscouet points to the fact that the Company has pleaded guilty when she asserts it could have pleaded not guilty on the basis that this was the fault of their particular employee.  We are not impressed with that argument in the sense that we think the case against the Company is strong, if not overwhelming, but nevertheless a Company is always entitled to credit for a guilty plea and we do give it credit.  It was also fully co-operative with the investigation and it is entitled to credit for that.  The Company also has a good record, given the length of time it has been in operation.  It has one previous conviction some years ago but otherwise its record has been good.

 

8.      Miss Roscouet maintains that this was not a disregard by the Company of its responsibilities.  On the contrary the Company had worked with the relevant authorities to work out a system which was safe.  Miss Roscouet states that it was let down by the error of judgment on the part of the foreman.  That may be so, but nevertheless the Company must take responsibility for that: the Company through its servants failed to fulfil its duty.  She goes on to say that the Company felt under pressure to complete the contract quickly and had been asked to do so by the Public Services Department.  It was working at weekends which it did not normally do.  We consider that to be no excuse; the clear duty of the Company was to take appropriate advice on how to proceed following discovery of the concrete, which we accept had not been foreseen.

 

9.      Finally Miss Roscouet referred the Court to certain cases, in particular AG -v- Stansell QVC Ltd (15^th October, 1999) Jersey Unreported, and AG -v- Regal Construction Co Ltd (21^st August, 1998) Jersey Unreported.  She points out that in the case of Stansell, the fine was £10,000 and in the case of Regal the fine was in the sum of £6,000.

 

10.    We consider that the facts of both those cases were very different to this one.  In one of those cases there was a failure to put in edge protection or a suitable means of access and in the other, there was a failure to put a guard over a rooflight which could have resulted in a person falling through and being severely injured.  The precautions in this case were designed to avoid a potentially very serious situation with the escape of gas and the accompanying risk of explosion thereby possibly causing injury to many people.  We consider - to use the words I indicated earlier - that the extent of the danger created by the offence and the degree of risk involved in this case to be of a wholly different order to the two cases which counsel has cited.

 

11.    We repeat that fines have to be fixed at such a level as to bring home the importance of the company's duty.  We are going to grant the conclusions of the Crown and therefore the fine imposed is £25,000 together with £2,500 costs.  The Company will be allowed two weeks in which to pay.

 

 

Authorities

 

 

R. -v- F. Howe & Son (Engineers) Ltd. (1999) 2 All ER 249 CA.

A.G. -v- Regal Construction Company, Ltd. (21^st August, 1998) Jersey Unreported.

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

A.G. -v- Ashfield Builders, Ltd. (10^th June, 1998) Jersey Unreported.

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