Jersey Unreported Judgments

[2005]JRC076

ROYAL COURT

(Samedi Division)

 

3^rd  June, 2005.

 

 

The Attorney General

-v-

Julian Revell Smith

 

Sentencing by the Inferior Number of the Royal Court on guilty pleas to the following:

 

Count 1:            contravention of Article 21 (a)(a) of the Health and Safety at Work |(Jersey) Law 1989 and

Count 2:            contravention of Regulation 2(1) of the Asbestos (Licensing)(Jersey) Regulations 1997.

 

Age:     40.

 

Plea:    Guilty.

 

Details of Offence:

Defendant was undertaking major renovation work on a large property for a third party.  Initially the work only involved the main house, but several weeks into the contract, extended to the outbuilding which needed "tidying up".  No asbestos survey carried out on outbuildings.  The site foreman, a carpenter, finished his work one day and with a couple of hours to spare, decided to pull down the ceilings of two adjoining ground floor rooms in the outbuilding with a crowbar, to assist an electrician who said it would be easier to rewire if this were done.  The ceilings contained asbestos insulation board (AIB).  The damaged board was later cleared up by a third party who was not identified.  Two other operatives had been sub-contracted to "soft strip" the main house.  However, two other operatives decided to remove another ceiling using a hammer.  They were thus also exposed to AIB fibres, released into the air.  The debris was stored for several weeks in black bags in an open store on site before being removed by two other operatives and driven away for disposal by another.  A total of seven persons were exposed to potential injury from asbestos fibres which were disturbed as a result of the AIB being broken up and cleared up.

 

Details of Mitigation:

Guilty plea.  Good character.  Had sent foreman on Highlands course which included a module on "hazardous materials" but did not include learning on asbestos.  Now specific course available from private company and defendant sending all his employees and regular sub-contractors on this course.  Not intentional to expose persons to potential injury; sub-contractors acting on own initiative.  Defendant had to personally pay for decontamination and disposal of waste because client had not asked for work to be carried out.

 

Previous Convictions:

Minor motoring offence.

 

Conclusions:

 

 

Count 1 and 2:

£5,000 on each charge or 1 month's imprisonment in default. Costs £2,500.

 

 

Sentence and Observations of Court:

Counts 1 and 2 £3,000 on each count or 1 month's imprisonment in default, consecutive. 

Costs £2,500.

14 days to pay.

 

 

Mrs S. Sharpe, Crown Advocate.

Advocate D. Gilbert for the Defendant.

 

 

 

JUDGMENT

 

 

 

THE DEPUTY BAILIFF:

1.        Asbestos is a dangerous substance which can be very injurious to health.  We were told during the course of this hearing by defence counsel that until recently there was no course available in Jersey in which people can be trained in recognising asbestos and the dangers associated with it.  If that is correct we have to express our surprise and we urge the authorities to ensure that courses are available so that people in the construction industry can be trained to recognise and protect themselves against this very dangerous substance. 

2.        Because of the dangers that arise from the substance we think that in cases of reckless disregard of the danger the Court should impose substantial fines.  All of the cases so far to which we have been referred had very specific mitigating features.  In our judgment the fines in cases where such mitigation is not available should be much higher than in those cases. 

3.        However, in this case too there is specific and unusual mitigation and that arises from how this incident occurred.  The defendant agreed to supervise some works to the main house in this case and there he undertook a survey for asbestos as one would expect.  There was no plan for any work to the outbuildings.  However, during the course of the works an electrician requested that the ceiling of the outbuildings be taken down so that he could inspect matters. 

4.        The defendant's workmen simply went ahead and acted upon that request and that was where the asbestos was discovered.  The defendant's failure therefore was to ensure that his workmen were properly briefed on the need to check for asbestos before undertaking any work of this nature.

5.        The defendant has already been punished in a way quite substantially because he has incurred costs, we are told of some £7,500, in dealing with and disposing of this asbestos and he cannot reclaim this from the client, because this was not work which was ever intended to be done.  He has in addition mitigation available in that he has pleaded guilty.  He was extremely co-operative, he has a good previous record and we have read all the references.

6.        Furthermore, a private company has, since this incident, apparently started to offer courses on asbestos and he has arranged for his employees and for various sub-contractors that he regularly uses to go on such a course at his expense.

7.        We take all that into account and in the circumstances we think we can reduce the fine because of the specific circumstances. 

8.        The fine will, therefore be, a total of £6,000, divided as to £3,000 on each count with 1 month's imprisonment in default, consecutive on each count.  Fourteen days to pay.

No Authorities