Jersey Unreported Judgments

2001/50

4 pages

ROYAL COURT

(Samedi Division)

 

23^rd February, 2001

 

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

Jurats Quérée and Le Breton

 

 

The Attorney General

-v-

Jack Victor Biggs

 

 

3 counts of:    contravening Article 21(1)(a) of the Health and Safety at Work (Jersey) Law, 1989, as amended, by not ensuring, as a self-employed person, that others (not being his employees), were not exposed to risks to their safety.

 

Age:    59.

 

Plea:   Facts admitted.

 

Details of Offence:

 

The defendant was a self-employed, small contract, builder.  Whilst in the process of demolishing a property on Old St. John's Road he failed to disconnect the gas service pipe and the electricity mains supply.  Inadequate fencing had been placed around the property.  As this fencing was inadequately secured a piece of hoarding fell, hitting a member of the public.  The Health and Safety Inspector attended on site together with JEC and Jersey Gas employees and the site was rendered safe.  The live electricity supply was in extremely close proximity to the gas service pipe which was still connected to the mains.  The site in question was formerly a terraced house on the main road and had gas escaped and mixed with the air there could have been an explosion which would have taken the form of a fire-ball.  There were reasonably foreseeable risks to trespassers and passers-by as well as to the defendant himself.

 

Details of Mitigation:

 

Guilty plea.  The defendant had relied on the standard search notice from Jersey Gas, which was carried out for conveyancing purposes.  The notice states that there was no record of a gas meter installed at the property but with the caveat that the company did not keep records of gas service pipes.  The defendant was not a company, as precedents under Health and Safety at Work prosecutions tended to be and his affidavit of means displayed an acute cash flow problem.  No actual injury or accident had occurred.  The defendant admitted that he should have disconnected the electricity supply, but he was not expecting to find a gas supply and he did not identify the relevant pipe as being a gas pipe; he apologised to all concerned.

 

Previous Convictions:

 

The defendant's criminal record showed nothing relevant, but a number of minor, mainly motoring, offences, indicating a casual approach to authority.

 

Conclusions:

 

Count 1: £6,000 fine.

Count 2: £6,000 fine.

Count 3: £3,000 fine; £2,000 costs.

 

Sentence and Observations of the Court:

 

Count 1: £5,000 fine.

Count 2: £5,000 fine.

Count 3: £3,000 fine; £2,000 costs.

 

A total fine of £13,000, or 2 months' imprisonment in default of payment, was imposed, with £2,000 costs.  The defendant was given 9 months to pay and the Court ordered that a judicial hypothèque be placed over his property until the fines were discharged.

 

 

Mrs. S. Sharpe, Crown Advocate.

Advocate W. Grace for the defendant.

 

JUDGMENT

 

THE DEPUTY BAILIFF:

 

1.            This was potentially a very serious incident.  Neither the gas nor the electricity supplies were disconnected from this development site as they should have been.  On the contrary they were put in close proximity to each other and there was clearly the potential for an explosion.  In addition there was no proper hoarding so that it was easy for children or others to gain access to the site.

 

2.            Mr. Grace has made a number of points in mitigation.  The three main points were as follows.  First, he relied upon the fact that when the development site, 26 Old St. John's Road, was purchased, the normal checks were carried out by the conveyancing department of his firm and the response from the Jersey Gas Company Limited had no tick against the question which reads:  "This property is connected to mains gas."  It follows, says Mr. Grace, that Mr. Biggs understood that there was no gas connection on the site.  However it is right to point out that the letter from the Gas Company contains the two following paragraphs by way of caution:

 

"The Company does not keep records of service pipes (the pipe which leads from the gas main in the road to the meter inside the consumer premises).  The information given is the best available according to our records and the only certain method of establishing the route of an underground pipeline is by excavation to expose the pipe

 

 Should any excavation be planned then the Jersey Council for Safety and Health at Work booklet entitled: "Working Safely in the Vicinity of Undergound and Overhead Electrical Cables and Gas Pipes and Gas Installations" must be consulted for the necessary precautions to be taken.  Free copies are available from The Department of Employment and Social Security, The Jersey Electricity Company and The Jersey Gas Company.

 

Please note that this information is for conveyancing purposes only."

 

3.            In our judgment it is the duty of a developer to make contact with the service companies prior to commencing the development.  In this particular case, when the excavation started and the gas pipe clearly became visible, Mr. Grace stated that Mr. Biggs did not appreciate that it was a gas pipe.  However, in our judgment it could only have been a gas pipe or a water pipe and it was incumbent upon him to take steps to ascertain the position.  In fact he made no effort to find out what sort of pipe it was.

 

4.            Secondly, Mr. Grace relies upon the fact that the defendant was an amateur developer acting as an individual.  This was not the case of a professional contractor with skilled employees and the Court should make allowances for that.  We accept that some allowance must be made but the danger to the public is the same whether the developer is an amateur or a professional and in our judgment there is a duty on an amateur developer to know his limitations and to obtain the appropriate advice.

 

5.            Thirdly Mr. Grace referred to the defendant's means.  We accept that he is not in a position to pay the fine asked for by the Crown immediately, but on the sale of Greenwood Cottage he will clear most of his liabilities.  It is stated in the affidavit of means that the Old St. John's Road development should be completed during the summer and that if the sale price referred to is achieved then, even allowing for a further sum of £70,000 to be spent, the defendant should receive something in the order of £330,000 clear of debt.  In these circumstances it is undoubtedly the case that he could afford to pay the fine moved for at a future date.

 

6.            Mr. Grace relied upon other mitigation, such as the guilty plea; the defendant's level of co-operation; and the fact that there was no actual escape of gas or any other incident and that no injury was caused to any person; although in relation to the hoarding there was an incident when some of it came loose and struck a passer-by.

 

7.            The Court has repeatedly stated that the level of fines for breaches of the health and safety legislation must be such as to bring home the importance of the duty under the legislation.  Allowing for all the mitigating circumstances to which Mr. Grace has referred we feel able to reduce the conclusions very slightly.  Stand up, please, Mr. Biggs.  On count 1, you are fined the sum of £5,000; on count 2, you are fined the sum of £5,000; on count 3, you are fined the sum of £3,000, making a total of £13,000.  There will be a prison sentence of 2 months' imprisonment in default of payment, concurrent, on each count.  Furthermore, you are ordered to pay the sum of £2,0000 costs.  You will have 9 months in which to pay, and we order a judicial hypothèque over the property until the fines are discharged.

Authorities

 

 

A.G. -v- Ashfield Builders, Ltd (20^th February, 1998) Jersey Unreported.

 

A.G. -v- Ernest Farley & Sons, Ltd (14^th April, 2000) Jersey Unreported.

 

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