Jersey Unreported Judgments

 [2003]JRC227A

ROYAL COURT

(Samedi Division)

 

5^th December, 2003

 

 

The Attorney General

-v-

Camerons Limited

and

H & U Industries Limited

 

Camerons Limited

 

1 count of:

contravening Article 9 of the Public Health (Control of Building) (Jersey) Law 1956 by failing to erect adequate and workmanlike vehicle crash barriers, as required by bye-laws, whilst carrying out work to which those by-laws apply.

 

 

Plea:    Facts admitted.

 

Details of Offence:

Camerons Limited was the main building contractor in respect in respect of a large construction site owned by C. Le Masurier Limited, part of which involved the building of a multi-storey car park.  Camerons sub-contracted to H & U Industries Limited for the provision and fitting of vehicle crash barriers around the upper floors of the car park.  When the car park was nearing completion and during a routine inspection, it was noted by the architect that fixing plates to the underside of the crash barriers had, in places, been inadequately fitted and in other places had been deliberately "faked" to appear as though they were bolted through the ceiling slab of the car park to the floor above.  In 16 instances, part-bolts had been placed in the holes in the slab with glue or resin and 18 plates were fixed to the car park ceiling with no more than two screws, effectively serving no useful purpose.  H & U had sub-contracted the fixing of the vehicle crash barriers to two men known only as Dave and Paul.  These men had deliberately carried out the defective work and no trace could be found of them.  The fixing plates weighed approximately 3 kilos and had one of them fallen from the ceiling, it could have caused serious injury.  The owner of H & U Industries, Mr Faulkner, said he was shocked when the defective work was pointed out to him.  He offered to put it right, but was not allowed back on site.  It was clear that he had failed to adequately supervise "Dave" and "Paul".  Equally, it was clear that Camerons failed to ensure the work was carried out properly.  If it had been carried out at the weekend, it said little for Camerons' site security, and if carried out during the day, it was a poor reflection on the site supervision of the large construction site.

 

Details of Mitigation:

Mr Faulkner had been in ill health at the time of the contract and admitted that once the men had started fitting the barriers, he did not visit the site as often as he should have.  He had paid £20,000 to Camerons by way of compromise, and was to pay a further £15,000 by August, 2004.  All the defects, which had been spotted prior to practical completion, had been remedied by Camerons by the time the car park was open to members of the public.  H & U was close to bankruptcy and a substantial fine was likely to have disastrous consequences.  Both companies had suffered a delay of some 18 months between the discovery of the defective work and the issue of a summons.  Camerons subsequently instigated a quality management system and a register for signing in and out of their sites.  The company had been building in Jersey since 1956 with an almost unblemished record.

 

Previous Convictions:

One conviction under Article 21(1)(a) Health and Safety at Work (Jersey) Law 1989 when the company was fined £10,000 in 2000.

 

Conclusions:

£10,000 fine; £2,500 costs (jointly and severally with H & U Industries Limited)

 

Sentence and Observations of Court:

£5,000 fine; £2,500 costs (jointly and severally with H & U Industries Limited)

 

 

H & U Industries Limited

 

1 count of:

contravening Article 9 of the Public Health (Control of Building) (Jersey) Law 1956 by failing to erect adequate and workmanlike vehicle crash barriers, as required by bye-laws, whilst carrying out work to which those by-laws apply.

 

Plea:    Facts admitted.

 

Details of Offence:

See Camerons Limited, above.

 

Details of Mitigation:

See Camerons Limited, above.

 

Previous Convictions:

None.

 

Conclusions:

£10,000 fine; £2,500 costs (jointly and severally with Camerons Limited)

 

Sentence and Observations of Court:

£5,000 fine; £2,500 costs (jointly and severally with Camerons Limited)

 

Mrs S. Sharpe, Crown Advocate.

Advocate N. Benest for Camerons Limited.

Advocate S. J. Crane for H & U Industries Limited.

 

 

JUDGMENT

 

THE COMMISSIONER:

1.        When the architect, Mr Harvey of the project manager's Longson Drabble Partnership, carried out a preliminary inspection of the vehicle crash barriers at the newly constructed Le Masurier's and Co-op car park at La Rue Le Masurier, he was entitled to feel disturbed.  The crash barriers were unfit for their purpose.  A full investigation revealed the whole tenor of the problem.  It has been explained to us in great detail by Crown Advocate Sharpe.  Matters were extremely dangerous to users of the car park.  To put a finer point on it, the work had been botched. 

2.        Camerons were the building contractors, H & U Limited were the sub-contractors who fitted the vehicle crash barriers and the bolts.  Mr Faulkner of H & U Limited had paid two men from Liverpool known to him only as 'Dave' and 'Paul' to carry out the work.  These men had worked for him before but on this occasion he met them in a public house.  Mr Faulkner had expressed the view that he was horrified when the faults were pointed out to him.  He was, in our view, entitled to be so. 

3.        It passes belief that Camerons, who had a management team of a construction manager, a project manager, two site managers and an assistant foreman on site failed to find these defects.  They have admitted that there was a flaw in quality control and that has been rectified.  H & U were to be paid £59,250 on satisfactory completion of the work.  Article 9 of the Public Health (Control of Building) (Jersey) Law 1956 fixes the penalty for contravention of the by-laws as an unlimited fine.  But at this point the situation becomes extremely difficult.  H & U Industries has an unblemished record, it has an excellent reference that has been supplied to us but its financial situation - because it is only a small firm - is clearly parlous.  Camerons is also a company with a virtually unblemished record.  It certainly has a record of building in this Island of which it can be justifiably proud. 

4.        Since the incident, which is serious as we have said, the company has now imposed checks to ensure that this slipshod event cannot occur again.  And both companies have had to sit on this matter for seventeen months before it came to Court.  There has been action by Camerons against H & U Industries which means that that company still has to pay £15,000 at the end of August next year to finalise its liabilities in that regard. 

5.        In the particular circumstances of this particular case, which must not be held to create any form of precedent, we have had to consider the means of one party which, after all, is the main perpetrator of these offences.  Camerons' offence is serious but is more in the breach than the observance. 

6.        After much consideration we have made the following decision.  Camerons shall pay £5,000 immediately.  H & U shall pay £5,000 but that is to be paid by equal monthly instalments with a minimum of £210 per month and with a view to clearing the liability within two years.  Each party must share the costs.  It will be for counsel, whose advice this morning has been most helpful, to carry out such negotiations with the Crown as they can in that regard and we cannot assist the parties on that matter.

Authorities

A.G. -v- Coutanche (15^th July 1998) Jersey Unreported; [1998/154]

A.G. -v- F.W. Woolworth & Co., Ltd and A.C. Mauger & Son (Sunwin) Ltd (7^th June 2000) Jersey Unreported [2000/99]

A.G. -v- Camerons Limited & GH Limited (24^th November 2000) Jersey Unreported; [2000/235]

R -v- F. Howe & Son Limited [1999] 2 All ER 249; [1999] 2 Cr. App R (s) 37

A.G. -v- D.A. Richardson Limited (7^th April 2000) Jersey Unreported; [2000/59].