Jersey Unreported Judgments

[2008]JRC095

ROYAL COURT

(Samedi Division)

13^th June 2008

The Attorney General

-v-

Apex Contracts Limited

Sentencing by the Inferior Number of the Royal Court, following a guilty plea to:

Plea: Guilty.

Details of Offence:

The Company was partially demolishing and refurbishing a three storey townhouse in Royal Crescent with a two storey extension/garage.  The Company took advice on potential presence of asbestos on garage roof (which was asbestos cement in corrugated roof sheets and not subject to the Regulations).  Copy of relevant approved Code of Practice sent to the Company by H&S Inspectorate.  Company nonetheless carried out the demolition of adjoining 2 storey building which contained asbestos insulation board (AIB).  Unclear from statements how AIB was removed - by hand or machine - contradictory versions from operatives.  Later admitted during mitigation removed by hand, thereby increasing risk of exposure.  Two operatives needlessly exposed to risk of injury through inhalation of asbestos fibres.

Details of Mitigation:

Admitted infractions; good character; purported to be in financial difficulties but did not produce company accounts to substantiate.

Previous Convictions:

None.

Conclusions:

Total: £17,500.

Sentence and Observations of Court:

Conclusions granted, 6 months in which to pay fine.

S. Sharpe, Crown Advocate.

Advocate C. L. Nicolle for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        It is well known that asbestos is a very dangerous material, the fibres of which, when airborne and inhaled, pose a very serious threat to health.  Asbestos related diseases apparently kill more people than any single work related cause and are reported to be currently responsible for 4,000 deaths a year in the U.K.

2.        The delay between first exposure and the onset of the disease can vary between 15 and 60 years.  Employers have a clear duty to protect their employees from these known risks.  In this case the defendant had been advised by the Health and Safety Inspector in person at this particular site about the legal requirements and the identification of asbestos containing materials in May 2007.  This was followed up by a letter enclosing a copy of the approved code of practice relating to working with asbestos.  The letter contained the following:-

"Where there is insufficient evidence to show that a material does not contain asbestos, steps must be taken to ensure that the nature of the material is confirmed by analysis.  Asbestos insulation board was used widely in Jersey, in particular on ceilings as a fire break between floors.  You must therefore ensure that ceilings are only removed by your employees once you are satisfied that they do not contain any asbestos".

3.        Furthermore, asbestos cement was found in the garage prior to the work on this particular outbuilding.  Nonetheless the defendant continued with the demolition of the adjoining two story building which contained asbestos insulation board, in a manner which can only be described as reckless and two employees were thus needlessly exposed to risk as a result.

4.        Advocate Nicolle informs us that a large fine may push the defendant into insolvency.  No accounts were produced.  We were given a bank statement showing an overdraft of £42,000 apparently over an authorised overdraft of £20,000.  A property is due to be sold but it is not an asset of the company.

5.        In our view if a company wishes the Court to take its financial position into account, the Court must be provided with past accounts for at least three years, if it has been trading that long, and a clear up to date statement of its financial position.  In this case we have not been provided with such information.

6.        In terms of mitigation the infractions have been admitted and the Company has no record of previous infractions.  It has now put in place proper procedures and training to prevent this happening again and we have received an apology from the Company.

7.        However, this is a very serious offence, the repercussions of which may not be known for a very long time.  Those involved in the construction industry must realise that such disregard for the health and safety of their employees will result in a very substantial penalty. 

8.        We are therefore going to grant the conclusions of the Crown.  On Count 1 the Company is fined £10,000 and on Count 2, £5,000, consecutive.  It is ordered to pay costs of £2,500 making a total of £17,500.  We are prepared to allow the Company six months to pay.

Authorities

R v Board of Trustees of the Science Museum [1993] All ER 853.

AG v Amplus Limited [2007] JRC 134.

AG v Grand Hotel and another [2006] JRC 146.

AG v Smith [2005] JRC 076.

AG v Dempsey [2005] JRC 085.

Health and Safety at Work (Jersey) Law 1989.

Asbestos (Licensing)(Jersey) Regulations 1997.