Jersey Unreported Judgments

 2001/239

ROYAL COURT

(Samedi Division)

 

30th November 2001

 

 

The Attorney General

-v-

MHS Environmental Limited

 

 

1 count of:

Contravening Article 21(1)(a) of the Health and Safety at Work (Jersey) Law, 1989, by failing to ensure as far as reasonably practicable, that employees were not exposed in their employment, to risks to their health (count 1).

 

[1 count of contravening Article 21(1)(a) of the Health and Safety at Work (Jersey) Law, 1989, by failing to ensure that persons not in its employment were not thereby exposed to risks to their health was withdrawn after the Crown accepted a plea of denial of the facts].

 

Plea:    Facts admitted.

 

Details of Offence:

The defendant company (MHS) held a licence under the Asbestos (Licensing) (Jersey) Regulations 1997 and was involved in the removal of acoustic insulation wall tiles from the Odeon Cinema in November 1999.  The method statement describing the manner in which the tiles were to be removed anticipated that the tiles were stuck to solid structural walls with adhesive.  The start of the works was delayed several times through no fault of MHS.  When the work eventually started Mr. Shane Holmes (the Director and beneficial owner of MHS) and supervisor Mr. B. Johnson were removing asbestos from an operational cruise ship in Germany.  MHS appointed Mr. D. Waddell as supervisor for the works being undertaken at the Odeon.  Mr. Waddell had attended a one day refresher course for basic operatives, but had not attended the three day supervisors' course.  Another employee of MHS (Mr. Penman) was also engaged in the asbestos removal works.  The acoustic insulation wall tiles were in fact screwed in each corner to wooden battens which in turn were attached to the walls of Odeon 3 and link corridor.

 

 The prosecution stated that the appropriate method of work to reduce risk to employees would be to carefully unscrew the screws attaching the tiles to the supporting battens whilst shadow vacuuming.  Once the first tile had been removed, the rear of the adjacent tile could be wetted and vacuum cleaned with a specialist device with a High Efficiency Particulate Filter prior to removing the screws from the adjacent tiles.  If the screws were sunk beneath layers of paint, then paint stripper should be applied and if this failed to expose the screw head, then core cuts ought to have been made using a specialised drill in conjunction with shadow vacuuming. The prosecution stated that these methods ought to have been used to reduce as far as was reasonably practicable risks to health and safety of MHS employees (Mr. Waddell and Mr. Penman).  There was no known safe level of exposure to asbestos fibres.  The prosecution did not aver that actual harm had been caused to Messrs. Waddell and Penman, but rather that they had been exposed unnecessarily to a risk to their health and safety.  No air monitoring samples available of concentrations of fibres in the working enclosure.  Prosecution estimated that the employees would have been exposed to respirable concentrations of between five and twenty fibres per millilitre averaged over a four hour period from the methods adopted by Waddell and Penman to remove tiles (with eight fibres per millilitre of air being the design limit of the respiratory protective equipment to ensure that operatives were not exposed beyond a control limit of 0.2 fibres of amosite fibres per millilitre).  Prosecution averred that the gravamen of the offence was the fact that Mr. Waddell had been left in charge of a project as a supervisor when he was not suitably qualified for the job and it was as a result of his failure to deal with an unforeseen circumstance which led to the offence, which is the subject of charge 1.

 

Details of Mitigation:

Plea of guilty, although Mr. Waddell had not attended a supervisor's course, he had 11 years experience in the asbestos removal industry and was able to deal, inter alia, with the setting up of the enclosure, fitting of airlocks and fresh air filters quite satisfactorily without supervision from Mr. Holmes or Mr. Johnson (both of whom were in Germany).  MHS felt it  was entitled to rely on his level of experience and expertise.  The fibre levels would have been considerably lower than those estimated by the prosecution particularly in the light of a further statement received by MHS on the 29^th November 2001 from Mr. Waddell which indicated that additional dust suppressant techniques were employed by Messrs. Waddell and Penman.  Defence also submitted that the type of acoustic tile fitted at the Odeon was pliable and would not have generated as much dust when broken as the prosecution expert intimated and that the fibre levels generated would not have exceeded the performance capacity of the powered respiratory equipment worn by the operatives.  The Court sentenced on the basis of the defence version of events.  Company in financial difficulty.

 

Previous Convictions:

None.

 

Conclusions:

£10,000 fine.

 

Sentence and Observations of Court:

£6,000 fine payable at the rate of £500 per month.

Court sentenced on the basis of defence version of events ignored financial status of company (it had not produced proper accounts) and reduced Crown's conclusions accordingly.

 

 

P. Matthews, Esq., Crown Advocate.

Advocate C.J. Scholefield for the accused.

 

 

 

JUDGMENT

 

 

THE DEPUTY BAILIFF:

1.        It is well known that inhaling asbestos fibres can cause serious and sometimes fatal injury to the lungs.  This case arises out of a contract where the defendant company was called in for its expertise in removing material with asbestos in it.

2.        There is no criticism of the plan which the company drew up for the removal of the asbestos tiles which were situated on the building site.  However, there were unexpected developments.  Because of the client's changes of mind, the contract was delayed and as a result Mr. Holmes and Mr. Johnson, the leading players in this company, were committed to another contract elsewhere.

3.        They left in charge a Mr. Waddell, who had many years' experience and who had recently been sent on a one day refresher course.  They believed that he was competent to manage this contract.  However, once he was in charge there were further unexpected developments.

4.        First, the enclosure in which they worked had to be altered because of a late change requested by the client.  Mr. Scholefield emphasises that Mr. Waddell was equal to this task and redesigned the enclosure in a perfectly satisfactory manner. 

5.        Secondly, it was discovered that the tiles, rather than being stuck on as thought, were screwed on.  Despite this, Mr. Waddell proceeded by allowing himself and his colleague to pull the tiles off with the result that they broke and asbestos fibres were released into the air.  The criticism made by the prosecution is that this was a faulty choice which exposed the employees to risk and that it arose because Mr. Waddell had not received sufficient training.  In particular the Crown stated that he should have attended the supervisor's course rather than the one day refresher course referred to earlier.

6.        In mitigation,  Mr. Scholefield has referred to the plea of guilty and the fact that this company has no previous record for breach of health and safety matters.  He says that it was not unreasonable for the company to believe Mr. Waddell to be capable in the light of his long experience; the fact that he had been sent on a refresher course; and, as it transpired, that he was up to the challenge in relation to one of the unexpected events.

7.        He also relies upon the fact that the danger was not as much as is said by the Crown.  We find it difficult to resolve this on the evidence before us.  He says that the type of tiles were in fact a different type to that on which certain of the Crown's figures concerning the amount of fibre likely to be released were based.  These were more flexible tiles which would not break as violently.  He says that,  contrary to what was originally thought to be the case, the tiles were dampened with water before being pulled off.  That information came from Mr. Waddell yesterday.  He further surmises that not as many of the tiles were screwed on as was at first thought and that many of them may in fact have been stuck on.

8.        Finally he asserts that the respiratory equipment supplied to the employees was, in this case, more than sufficient to avoid any real risk of damage for the period that there was an exposure to asbestos particles.

9.        As we say, we find it difficult to reach a concluded view on this but, in view of the long time that this case has been going on we think the right course is to be proceed on the defendant's version, it not being possible at this stage to show that what is said is wrong.  We are therefore dealing with a case where the criticism of the defendant is that although the person left in charge had a considerable amount of practical experience and some training, he should perhaps have been given more training and that,  when faced with an unexpected development in relation to the tiles, he took the wrong course, although as it transpired that did not impose any high level of danger to the employees, but clearly there was some risk by reason of the release of the asbestos fibres.  On that basis and having regard to the limited nature, therefore, of the breach of the Law we think we can reduce the conclusions.  This Court remains of the clear view that breaches of this Law must attract substantial penalties but one always has to have regard to the nature of the breach.

10.      In all the circumstances we impose a fine of £6,000.  In the light of the financial position of the company, it is to be paid at £500 per month.

 

Authorities

AG-v-Riviera Guest House Ltd (1^st November, 1991) Jersey Unreported.