Jersey Unreported Judgments

[2007]JRC159

ROYAL COURT

(Samedi Division)

17^th August 2007

Before     :

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats de Veulle, and Morgan.

The Attorney General

-v-

D. B. Cummins (Jersey) Limited

David Brian Cummins

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

D.B. Cummins (Jersey) Limited

1 charge of:	Contravention of paragraph 1(c) of Article 21 of the Health and Safety at Work (Jersey) Law, 1989, as amended. (Charge 1).
1 charge of:	Contravention of paragraph 1(a) of Article 21 of the Health and Safety at Work (Jersey) Law, 1989, as amended. (Charge 2).

Plea: Guilty.

Details of Offence:

The company was carrying out demolition work at La Rocquier School, St Clement as part of the major re-development programme of the school.  Part of the works involved the demolition of Blocks A and B of the pre-existing school.  These buildings were constructed of a pre-designed modular light weight steel framed system known as a "SCOLE" system.  (The second consortium of local authorities).  SCOLA buildings are all designed around a standard structural steel frame based on a grid with standard dimensions, with various design possibilities available ranging from a simple rectangular shape to more complicated conformations with a variety of roof shapes.  La Rocquier School was an early SCOLA mark 3 system of flat roof construction.  The upper floor of Block B consisted of individual pre-case concrete slabs (approximately 6 ft long by 2 ft wide) which were supported at each end by steel beams.  No physical fixings were used to secure the pre-cast units in place.  The slabs were then grouted with a high performance material, meaning they acted as a diaphragm providing lateral restraint and rigidly to the steel frame.  This was further reinforced by concrete laid over the top of the pre-cast units to form a continuous surface covering.  Given this unusual construction, the building had to be assembled in a specific sequence to ensure that stability of the structure was maintained at all times.  Expert evidence was available that the building should have been demolished in the reverse order to its construction, taking into account the structural stability of the steel frame being dependent on the rigidity inferred by the grouted floor check and roof decks.  This would, therefore have involved initially the removal of all external cladding, padding, windows etc. and internal structure such as partition walls.  The upper floor deck should then have been removed before the lower ones and advice sought from a structural engineer as to whether temporary bracing or other supports were required to maintain the stability of the overall structure.

The Company employed a number of employees to undertake the work overseen by the Managing Director, the Second Defendant.  Employees used Jack hammers to break through section of the concrete screed and grouting covering the pre-case units.  The Jack hammers were mainly used to break along the lines of the external perimeter of the building and around the top of each vertical column where the concrete screed was difficult to remove.  Once the concrete screed had been broken in this manner each operative used a metal bar to bang the top of the screed to break it up further.  After the screed had been removed the pre-cast concrete units were then levered off their supports with the metal bars and allowed to drop to the ground below.  The work progressed so that the employees removed a row of slabs immediately in front of those on which they were standing.  Whilst proceeding in this fashion, one of the sections of the floor on which they were standing suddenly collapsed causing three employees to fall through the resulting hole and land on the ground some 21 feet below.  A fourth employee started to fall but managed to cling onto part of the floor deck which was left in situ and pulled himself up.  Each of the three employees who fell to the ground sustained various degrees of injury although at the time of the sentencing hearing, two of them had made a good recovery and the prognosis for the third remained unclear.

The Health and Safety Inspectorate investigation concluded that the demolition works had been undertaken in an unsafe manner and that insufficient care had been taken in ascertaining the correct and safe method of demolition for this type of building.  As a secondary matter it was noted that there was not sufficient safety handrails around the edge of the buildings and this demolition.  It was accepted that this failure was not directly related or causative of the fall of the three employees.  There was, therefore, a failure to provide a safe system for the work at height.

A separate charge had been brought against Mr Cummins in his capacity as the Managing Director of the Company as he had been intimately involved in the planning and managing of the demolition work.

Details of Mitigation:

The Crown had regard to the aggravating and mitigating factors identified in the case of R v Howe and Son [1999] 2 All ER 255.  It was not contended that the breaches had occurred as a result of an attempt to save money.  The three employees were injured to various degrees.  The Defendant company had a prior breach of the 1980 Law.  Mr Cummins also had a previous conviction for a health and safety infraction, albeit in 1981.  Guilty pleas had been entered at an early opportunity.

The Defence emphasised that these offences were a matter of deep regret for both the company and Second Defendant.  Safety had never been treated lightly by the company etc.  The offences had arisen due to a miscalculation of how this particular building had to be demolished.  This was the first SCOLA building that the company had demolished.  It was in addition to a difficult project because of other safety issues and the fact that there was still a working school and, therefore, the hours of work etc. were limited.  There had been no previous criticism or intervention in relation to the method used by the company in demolishing the earlier buildings at the site.  The company accepted that with hindsight errors or miscalculations had been made and such demolition work would now be dealt with differently by the company.  Following the accident a change of method was used to complete the demolition.  It was noted that the company's health and safety record was a good one and that there were no general concerns as to its health and safety standards as further contracts had been provided to the company by the same employer following this incident.  In relation to Count 2, this did not affect the circumstances of the accident but it was a technical breach which was accepted.  It is clear that protective borders had originally been in place but they had been removed prematurely.  It was accepted that the handrails should still have been in place and should have been removed as was required to complete other works.  It was contended that in the light of all the available mitigation, in particularly as the aggravating factors found in R v Howe did not apply, the company should be dealt with as leniently as possible.

Previous Convictions:

Two previous convictions in 2001 of Contravention of Article 21(1)(a) of the Health and Safety at Work (Jersey) Law, 1989 in relation to a collapse of scaffolding.

Conclusions:

Charge 1:	£20,000 fine.
Charge 2:	£5,000 fine.

Costs: £2,500.

Total: £27,500.

Sentence and Observations of Court:

Charge 1:	£15,000 fine.
Charge 2:	£2,500 fine.

Costs: £2,500.

Total: £20,000.  Time in which to pay: 2 months from the date hereof.

The Court summarised the facts.  The company had pleaded guilty to two contraventions of the Health and Safety at Work (Jersey) Law 1980.  Both charges arose out of the demolition of Le Rocquier School.  Three employees had fallen 21 feet and suffered injuries but fortunately no permanent effect for at least two of those employees.  In mitigation the company had failed to take into account that this was a SCOLA design when undertaking its method of demolition and had failed to take all practicable steps to ensure a safe demolition had been undertaken.  In relation to the second charge, no adequate precautions had been taken to prevent employees falling off the building by the use of a temporary handrail.  In fact no-one had fallen off but the failure to provide was a breach which could have led to a situation where an employee could have fallen off.

The Court repeated its approval of the authority of R v Howe and the object of Health and Safety prosecution was to achieve a safe environment for all persons working on a building site etc.  Advocate Clarke had spoken eloquently on behalf of the company and Mr Cummins.  This was not just a case of a blatant breach but a miscalculation or error of judgement as to how to fundamentally safely demolish the building.  The company had never done this type of demolition work before.  There were no aggravating factors here under the authority of R v Howe.  On the contrary some of the mitigating factors referred to were available: (1) guilty plea; (2) undertaking immediate remedial steps; and (3) good safety record.  The company had one previous conviction in 2001.  The Court had regard to the excellent references which had been provided.  The Court accepted that the company did take health and safety seriously and had a good work record.  In relation to the second charge it was emphasised that there had been a temporary handrail until the day of the accident and it is accepted that the handrail should have remained.  The Court proceeded on that basis.  The Court concluded that this was not a case of disregard of health and safety legislation but rather a case of misjudgement in a fairly unusual case.  The Court, therefore, felt able to reduce the fine on the company.

David Brian Cummins

1 charge of:

Committing an offence under paragraph (3) of Regulation 30 of the Construction (Safety Provisions)(Jersey) Regulations, 1970, as amended. (Charge 3).

Plea: Guilty.

Details of Offence:

See D.B. Cummins (Jersey) Limited above.

Details of Mitigation:

See D.B. Cummins (Jersey) Limited above.

In terms of the mitigation for Mr Cummins, he was the owner of the company, he was the Managing Director and principal shareholder.  It was a family run business and, therefore, it was queried what was sought to be achieved by prosecuting him as well, as any financial penalty against the Company would be directly a financial penalty against him.

Previous Convictions:

None relevant motoring offences.  One offence as an employer having failed to take adequate precautions to prevent the collapse of a wall (1981).

Conclusions:

Charge 1:

£10,000 fine.

Costs: £1,000.

Total: £11,000.

Sentence and Observations of Court:

The Court then turned to the charge against Mr Cummins.  He had been charged as the Managing Director of the company.  The provisions exist to charge officers of the company and it is often appropriate to do so.  The Court had considered whether it was appropriate in the circumstances of this case.  The company was owned by Mr Cummins and effectively the company was Mr Cummins etc.  And fine on the company would, therefore, adversely affect Mr Cummins in terms of his salary or profits of the company.  In the particular circumstances the Court concluded that they could not see any satisfactory reason why the separate charge had been brought against him.  He would suffer in consequence of the company's penalties.  The Court, therefore, imposed no separate punishment on Mr Cummins and made no order for costs.  The Court allowed the Company 2 months to pay the fines.

J. C. Gollop, Esq., Crown Advocate.

Advocate A. J. Clarke for the Defendants.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The Company has pleaded guilty to two counts under the Health and Safety at Work (Jersey) Law, 1989.  Both arise out of works of demolition at Le Rocquier School. 

2.        On 29^th June 2006, the site foreman and four employees were working on the demolition of block B at the school.  They were on the second floor when the concrete slab, upon which they were standing, collapsed and three of the employees fell some 21 feet to the ground, suffering injuries which necessitated their being taken to hospital although, fortunately, there appear to have been no permanent effects.  On investigation it became clear that in choosing the method of demolition, the company had failed to take into account that this was a building of a particular design, know as a SCOLA design.  The actions of the company, in what they had done, resulted in the concrete slabs no longer remaining firmly attached to the steel framework with the result that they could drop to the ground, as in fact happened.  It is this failure to take all practical precautions to avoid danger from collapse of a building when any part of the frame is removed, which gives rise to the first and most serious of the charges. 

3.        The second charge against the company arises out of the fact that when the investigators came on site, immediately after the accident, they found that on the second floor, where the men had been working, there were no adequate precautions in place to prevent people falling off the edge of the building, for example, there were no temporary hand rails.  In fact nobody had fallen off the edge of the building; the three employees had, of course, fallen through the middle of the building because of the collapse of the floor.  Nevertheless, the failure to provide barriers, such as hand rails, was in breach of the law and could have lead to a situation where employees fell off the side, even though that did not in fact happen.

4.        This Court, in matters of health and safety, has repeatedly applied the principles laid down in the English case of R v F Howe & Son (Engineers) Limited [1999] 2 All ER 249.  In particular, the objective of prosecutions for health and safety offences in the work place is to achieve a safe environment for those who work there, and for members of the public who may be affected.  A fine needs to be large enough to bring that message home and, where the defendant is a company, to bring that home not only to those who manage it, but also to its shareholders.

5.        Mr Clarke has spoken eloquently in mitigation.  He has emphasised that this was not a case of blatant thoughtlessness or disregard for safety procedures.  It was simply a miscalculation or error of judgement as to how, technically, to demolish this particular property.  He says that the SCOLA design is not that common.  In particular, he says the company had never before had to demolish a SCOLA building.  He also emphasised that there appears to be no manual on how to demolish a SCOLA building.  Indeed the expert relied upon by the Prosecution agreed that there did not appear to be any such manual.  He said that you had to infer how best to demolish a SCOLA building from the guidance manual which did exist as to how to erect a SCOLA building.  In other words when demolishing you should do the reverse of what you would do if you were to erect it.  Similarly there does not appear to have been any advice from any other members of the project team on this topic.  The site was visited regularly during the course of the work over quite a considerable period and there is no evidence that anyone suggested that the company was undertaking the demolition in an unsuitable or dangerous manner. 

6.        The case of Howe listed some aggravating features but none of them are present in this case.  On the contrary said Mr Clarke, some of the mitigating features mentioned there did exist.  Thus the company had pleaded guilty on the first occasion, remedial steps had been taken in the sense that the following Monday the demolition continued with a new system appropriate for a SCOLA building, and, thirdly, he says that the company has a good safety record.  It is true that it has one previous conviction in 2001, but we have seen the judgment from that and it is clear that it was an isolated incident where employees had simply disobeyed instructions.  We have seen the many excellent references which have been provided, and we accept that the company does take safety seriously and, apart from the incident we have referred to, has a good track record.  We have also been referred to the training courses that employees had gone on in relation to this matter.

7.        As to the second charge, Mr Clarke emphasised that, on the Defence version, there had been temporary hand rails in existence until that very day when they must have been removed by the employees and accordingly this was a short term omission.  In the absence of any evidence to the contrary from the Prosecution, we must proceed on that basis and we do. 

8.        We accept that the points put forward by Mr Clarke have considerable force, we do not think that this was a case of disregard of safety standards or the duty on the company; it was a case of a misjudgement in fairly unusual circumstances so far as the company was concerned.  In the circumstances we are going to reduce the fine on the company.  In relation to charge 2 we think that, on the basis of the Defence version of events, the fine is too high and we impose a fine of £2,500.  In relation to the more serious charge, charge 1, we think that the appropriate level of fine is £15,000.  We also order costs in the sum of £2,500.

9.        The Prosecution have also charged Mr Cummins personally.  The charge against him mirrors charge 1, in other words it arises out of exactly the same events, except that it charges him as having been the managing director and therefore through his neglect having caused the offence. 

10.      The provision, of course, exists in many Laws to charge directors, and in many circumstances it is right to do so.  An obvious example would be where you have a public company, or a company owned by different shareholders, and a director has been particularly at fault and you need to bring home to him the responsibility for his action.  Similarly one can envisage circumstances where the company may be short of funds and the director has been primarily responsible, even though as shareholder, and he should pay the fine.  There will, of course, be other circumstances where it is also appropriate to prosecute the director. 

11.      In this case, Mr Cummins is the owner of the company.  In effect, as Mr Clarke said, the company is Mr Cummins and Mr Cummins is the company.  Any fine levied on the company will be borne, ultimately, by Mr Cummins in the sense that it will reduce the amount that he is able to derive by way of profit or salary from the company.  In the particular circumstances of this case, we regard the decision to prosecute him as duplication.  We asked Mr Gollop the reason for the decision to prosecute Mr Cummins.  Now it is right to point out that this is not Mr Gollop's case and not unnaturally he was not aware of the full history, but he was unable to come up with a satisfactory explanation as to why Mr Cummins was prosecuted and, in the absence of any explanation from the Prosecution, we cannot think of a valid reason for it either.  In our judgement he should not have been prosecuted.  This was a case where the company committed the fault and he will suffer through the fine correctly levelled on the company.  In the circumstances we propose to inflict no penalty on the charge against him personally and make no order for costs against him.

12.      The total, therefore, is £15,000 charge 1; £2,500 charge 2; £2,500 costs, all against the company.

(There followed an application on time to pay).

13.      This fine must be paid within 2 months.

Authorities

Health and Safety at Work (Jersey) Law 1989.

R v F Howe & Son (Engineers) Limited [1999] 2 All ER 249.