Jersey Unreported Judgments

[2006]JRC146

ROYAL COURT

(Samedi Division)

12^th October 2006

Before     :

Sir Philip Bailhache, Kt., Bailiff, and Jurats Le Breton and Newcombe.

The Attorney General

-v-

The Grand Hotel

And

Swift Property Services Limited

 

The Grand Hotel Limited

 

1 count of:

Contravening Article 21 (1) (a) Health and Safety at Work (Jersey) Law 1989 - breach of duty under Article 5 (1).

Plea: Guilty

Details of Offence:

The Leisure Centre at the Grand Hotel was being refurbished and the suspended ceiling over the swimming pool had to be replaced.  During the course of work, asbestos insulation board was damaged and asbestos fibres were released into the atmosphere, exposing persons in the area to potential health risks.  Those persons affected were Andrew Robertson (sole shareholder/Director of Second Defendant, an employee of the Second Defendant and two independent sub-contractors.  First Defendant had initially contracted Stevtom Limited to carry out the work.  Although Stevtom quoted for the work, the company was unable to carry out the work and sub-contracted it to the Second Defendant.  No mention was made to the Second Defendant of the possibility of presence of asbestos containing materials.  Mr Robinson of Second Defendant managed and supervised the project as well as being directly involved "hands on".  Exposure to asbestos fibres was for a little over a day before the damaged boards were identified by the Maintenance Manager of the First Defendant as likely to containing asbestos.  He immediately instructed all the operatives in the area to stop work and leave the area.  Some asbestos-containing materials had already been dumped at La Collette.

Details of Mitigation:

No international breach of the Law and Regulations.  First Defendant subsequently carried out complete asbestos survey of premises.  Paid for decontamination works.  Second Defendant was ignorant of risks.  Placed reliance on Stevtom Limited where risk had to been mentioned.  Second Defendant in parlous financial circumstances.

Previous Convictions:

None.

Conclusions:

Count 1:

£12,000 fine.

Total: £12,000 fine and £3,000 costs.

Sentence and Observations of Court:

Conclusions granted.

Swift Property Services Limited

 

1 count of:	Contravening Article 21 (1) (a) Health and Safety at Work (Jersey) Law 1989 - breach of duty under Article 3 (1).
1 count of:	Contravening Article 21 (1) (a) Health and Safety at Work (Jersey) Law 1989 - breach of duty under Article 5 (1).
1 count of:	Contravening Article 21 (1) (b) Health and Safety at Work (Jersey) Law 1989 - breach of Asbestos (Licensing)(Jersey) Regulations 1997.

Plea: Guilty

Details of Offence:

See Grand Hotel above.

Details of Mitigation:

See Grand Hotel above.

Previous Convictions:

None.

Conclusions:

Count 1:	£7,500 fine.
Count 2:	£7,500 fine.
Count 3:	£5,000 fine.

Total £20,000 fine and £3,000 costs.

Sentence and Observations of Court:

Count 1:	£6,000 fine.
Count 2:	£6,000 fine.
Count 3:	£3,000 fine.

Total £15,000 fine and £3,000 costs.

Fines levied on the Second Defendant must be paid within 18 months.

Mrs S. Sharpe, Crown Advocate.

Advocate M. J. Thompson for the First Defendant.

Advocate C. Deacon for the Second Defendant.

JUDGMENT

 

THE BAILIFF:

1.        Asbestos is now widely recognised to be a highly dangerous material which is to be treated with extreme care.  Any employer engaged in the building trade should be fully aware of that fact and of the necessity to take reasonable precautions or adequate steps as required by law to prevent the exposure of his employees and the public to asbestos fibres and the consequent risk of danger to health.   Any owner of property, but particularly commercial properties, who employs contractors to work on his property is under a similar duty.

2.        What happened in this case was that Grand Hotel Limited, the First Defendant, wanted work done on its swimming pool area.  The First Defendant was aware of the risks from asbestos because it had carried out a survey of the property in 1999 although not of the particular area in question here.  Furthermore, it had commissioned an update of that report which was undertaken and completed in December 2005 before the work to which this prosecution relates had commenced.

3.        The work was carried out by the Second Defendant, Swift Property Services Limited.  Its principal, Mr Andrew Robertson, appears to have been substantially if not entirely ignorant of the risks of asbestos.  He was certainly unable to recognise the material and exposed himself and his employees to considerable risks by working in asbestos dust for a period of several hours.  But for the actions of the maintenance manager of the First Defendant, Mr Howell, who recognised the material and immediately caused the area to be vacated, the risks could have continued for much longer.

4.        The duty to protect employees is a high duty.  Employees do not benefit from the profits of an enterprise other than through their wages and are entitled to expect that their employer will provide a safe system of work and will protect their interests.  Mr Robertson utterly failed in this regard.  It seems that he was ignorant of the risks but he was also reckless as to the safety of his employees.  This was a very serious breach of the Regulations by the Second Defendant.  We endorse a comment of the Deputy Bailiff in AG -v-Smith [2005] JRC 076 that in cases of reckless disregard of the danger the Court should impose substantial fines.

5.        In mitigation, so far as the First Defendant is concerned, the Company accepted responsibility without demur and has pleaded guilty to the charges.  It is undertaking a substantial refurbishment of the Hotel which will ensure that this kind of risk will not recur.  It had identified the risk of asbestos in the sense that it had commissioned an up-date of the 1999 Report which was completed before the end of December 2005. 

6.        The Court nonetheless finds it extraordinary that no one thought fit to advise the contractor that the contents of the report demonstrated the presence of asbestos in many parts of the property.  We think the conclusions moved for by the Crown Advocate are entirely correct and we accordingly fine the First Defendant £12,000 and order it to pay the costs of the prosecution not exceedingly £3,000.

7.        As far as the Second Defendant is concerned it was, through its beneficial owner, ignorant of the risks involved.  Ignorance is, however, no excuse.  The defendant company exposed its employees to substantial risk.  In mitigation the Second Defendant was co-operative, admitted the offence and has pleaded guilty to the charges.

8.        Counsel told us that Mr Robertson was aggrieved that no one had informed him of the presence of asbestos in the Hotel.  We understand that and we think that some responsibility is borne by Stevtom Limited which had carried out work on the Grand Hotel and which introduced the work to the Second Defendant.  It is that factor alone which has caused us to reduce slightly the conclusions  for which the Crown Advocate has moved.

9.        The Second Defendant is accordingly fined the sum of £6,000 on Count 1, £6,000 on Count 2 and £3,000 on Count 3 making a total of £15,000 and we order it to pay the costs of the prosecution not exceeding £3,000.  The fines levied upon the Second Defendant must be paid, having regard to the financial difficulties which it faces, within 18 months.

Authorities

AG -v-Smith [2005] JRC 076.