Jersey Unreported Judgments

[2003]JRC114

ROYAL COURT

(Samedi Division)

 

4^th July 2003

 

 

The Attorney General

-v-

Trant Construction Limited

 

 

 

2 counts of:

Contravening Article 21(1)(a) of the Health and Safety at Work (Jersey) Law 1989.  Count 1: by failing to ensure (a) that the employees were not exposed to risks to their health at work; and (b) by failing to provide such information, training and instruction as was necessary to ensure employees' health at work was not at risk.  Count 2: by failing to conduct undertaking so as to ensure that non-employees were not exposed to risk.

 

 

Plea:    Facts admitted.

 

Details of Offence:

Defendant company, as part of £12 million project involving the States of Jersey Airport, were contracted to demolish the old Aero Club hanger.  A survey revealed the building contained asbestos insulation board (AIB).  The company sub-contracted the removal of the AIB by a licensed asbestos removal company.  When work was running short on the site, three operatives were asked to start stripping out the hangar and in doing so, the AIB was damaged.  One of the defendant company's operatives admitted putting a hammer through the AIB.  None of the workmen admitted to being responsible for the considerable further damage to the AIB.  The hangar was not adequately secured against trespassers, vandals etc.  It was clear, however, that three of the defendant's employees had been exposed to the potential health risks arising from exposure to asbestos, and possibly also unknown third parties who may have gained unauthorised access.

 

Details of Mitigation:

Guilty plea.  No convictions recorded against the company which had been heavily involved in the construction industry since 1958.  Several awards for safety.  UK Director, who attended Court, had just completed an asbestos awareness course.  

 

Previous Convictions:

None.

 

Conclusions:

 

Count 1:	£10,000 fine.
Count 2:	£10,000 fine. £2,500 costs.

 

 

Sentence and Observations of Court:

 

Count 1:	£7,500 fine.
Count 2:	£7,500 fine.
	£2,500 costs.

 

Taking into account the mitigation put forward the Court sentenced the company to a £15,000 fine and agreed with the Crown's view that both charges merited the same level of fine, i.e. £7,500 on each count together with £2,500 costs and 14 days within which to pay the fine.

 

Mrs S. Sharpe, Crown Advocate.

Advocate J. Michel for the Defendant.

 

 

 

JUDGMENT

 

 

 

THE DEPUTY BAILIFF:

1.        This is an unusual case.  The defendant company was employed on a large contract at Jersey Airport.  Part of that contract involved the demolition and reconstruction of the Aero Club.  The Aero Club was known to contain asbestos insulation board in various partitions and at other places on the ground floor.  This had been carefully looked into, the areas where there was asbestos board had been marked, and a specialist sub-contractor licensed under the relevant Jersey regulations had been appointed to demolish and remove those parts which contained asbestos.

2.        The defendant company had behaved very responsibly, as one would hope.  However, for reasons which are not clear, the local management agreed - when some of its workers were a bit short of work - to allow them to start clearing the relevant area on the 27^th June, 2002.  One of the employees who started that work put a hammer into a partition containing asbestos, but then realised what he had done and stopped.

3.        The more serious incident occurred sometime on the 1^st or 2^nd July, when substantial damage was done to one of the partition walls which contained asbestos insulation board.  We have seen the photographs.  It is clear that this would have given rise to a release of asbestos fibres.  The difficulty is that it has proved impossible to ascertain with certainty who did this.  The employees deny that they did so.  The other possibility is vandals.  The site was open to the road and it was not secure.  It was possible for anyone, therefore, to walk into it but there was no history of security problems on the site.  There was no evidence that anyone had gained access to the site, no tools had been left out, so any vandal would have had to use chairs, and they apparently attacked this wall only.

4.        The damage was apparently noticed on the 2^nd July, and no further work was done thereafter.  However, the company took no other precautions at that stage.  The specialist sub-contractor came on site on 4^th July, in order to prepare for the beginning of his contract on the 5^th July.  It immediately saw that there was a problem as a result of what had happened, and called in the Health and Safety Department and generally took steps to secure the site.

5.        It is clear from the evidence before the Court that the levels of asbestos fibre at that time were well below any levels set by the English regulations.  What, of course, we do not know is the level of asbestos fibres to which whoever did this was subjected at the time. 

6.        The defendant company accepts that it was in error.  It accepts that at the relatively junior management level the position was not made sufficiently clear to employees as to what they should or should not do.  Furthermore, it is accepted that the site was not made sufficiently secure so as to avoid the risk of danger to third parties, such as trespassers.

7.        Asbestos fibre is a potentially dangerous substance, which leads to various serious diseases, which in turn lead to death.  The risk of any of these consequences materialising is related to the levels and length of exposure.  The fines which a court imposes when there has been a breach of safety in relation to asbestos must reflect the serious risks which follow from such a failure.  Nevertheless, Mr Michel has put forward, persuasively, a powerful case in mitigation. 

8.        First, he points to the excellent track record of this company.  It is not just a case, as so often happens, that the company has not been previously prosecuted or convicted of health and safety infractions.  We have been shown evidence that this company has repeatedly won awards for the very high level of importance which it attaches to health and safety matters.  That is to be commended and, of course, stands it in good stead today.

9.        The company has also pleaded guilty, notwithstanding the somewhat confused factual background which we have described.  The matter has been hanging over it for about a year.  The company has also taken steps to rectify the matter in order to try to ensure that no such incident would occur again.  Mr Trant, Senior Resources Director, has attended a course on asbestos in order to ensure that a senior official is fully informed. 

10.      There is particularly strong mitigation in this case.  Mr Michel has referred us to some other cases, particularly those involving asbestos.  The particular case to which he referred us was A.G. -v- H & V Building Services (7^th April, 2000) Jersey Unreported; [2000/58]  The difficulty is that each case turns very much on its own facts and in particular on the available mitigation.  As this Court has said before we do not think that too much can be read into making careful comparisons with the facts and mitigation in other cases.

11.      We have stood back and have looked at these two charges as a whole because in a sense they are all part and parcel of what went wrong on this occasion.  We think that for what the company failed to do correctly on this occasion an overall fine of £15,000 is the right level.  We see no reason to differ from the Crown in thinking that it is convenient to split that sum equally between the two charges.  There will, therefore, be a fine of £7,500 on each charge, costs of £2,500 and the company has 14 days in which to pay.

Authorities

Health and Safety at Work (Jersey) Law 1989: Articles 2, 5, 21.

R -v- Howe & Son (1999) 2 All ER 255.

R -v- Board of Trustees of Science Museum (1993) 3 All ER 853.

A.G. - H & V Building Services (7^th April, 2000) Jersey Unreported; [2000/58].

A.G. -v- MHS Environment Limited (30^th November, 2001) Jersey Unreported; [2001/239.