Jersey Unreported Judgments

[2009]JRC053

ROYAL COURT

(Samedi Division)

24^th March 2009

The Attorney General

-v-

Raffray Limited

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

Plea: Guilty.

Details of Offence:

In about March 2007, Vanni (C.I.) Limited contracted the defendant company to repair a cast-iron fractured jockey wheel clamp and it was accordingly weld-repaired.  In about December 2007, Vanni contracted the defendant again, this time to modify its cable drum trailer by fabricating and fixing a brake to the drum.  Whilst the trailer was awaiting modification in the defendant's yard, the trailer was moved by the defendant's employees and it crashed, fracturing the jockey wheel clamp.  The clamp was re-welded along the line of the previous repair-weld.

The welder had no information as to how the clamp had been broken nor its use/load bearing requirements.  When the drum trailer was later in use by Vanni employees, and whilst being manoeuvred manually into position, the jockey wheel suddenly collapsed and the towing arm of the trailer fell onto a Vanni employee, causing serious injuries to his foot and leg requiring extensive surgery and treatment.  The failed clamp was sent to the Health and Safety Executive in England for examination and determination as to why the clamp had failed.  The re-weld repair was found to be defective.

Details of Mitigation:

Prompt admission, good character, good references.  Business set up in 1863, company incorporated in 1964 undertaking all kinds of engineering, fabricating and machining.  This was the first known accident from a defective weld.  Accepted decision to re-weld was wrong and component should have been replaced.  Had taken steps to ensure situation would not re-occur.  Company actively involved in training school leavers within company, day release at Highlands and later finding placements.  Presently suffering downturn in business due to prevailing economic climate.  May not make a profit this year.

Previous Convictions:

None.

Conclusions:

£2,500 costs.

Total: £17,500.

Time to pay 28 days.

Sentence and Observations of Court:

The Court issued Crown's warning that level of costs in H&S Prosecutions may rise in future, should H&S inspectorate in Jersey need to seek guidance and assistance from H&S Executive of England and Wales, because H&S executive now charging fees for so doing.

£2,500 costs.

Total: £12,500.

Time to pay 28 days.

S. Sharpe, Crown Advocate.

Advocate C. J. Dorey for the Defendant.

JUDGMENT

THE commissioner:

1.        In December 2008 the defendant was requested to carry out modifications to a cable drum trailer owned by Vanni (C.I.) Limited.  In moving the trailer in its yard it rolled down a slight slope and the jockey wheel, which holds up the front of the tractor arm, fractured at the site of a repair that the defendant had carried out about a year before.  The defendant decided to have the clamp re-welded.  It is clear that it is in that decision that the defendant fell into error.

2.        When Vanni (C.I.) Limited subsequently moved the trailer manually on site, the jockey wheel suddenly collapsed trapping an employee's left leg and foot beneath it.  The employee suffered multiple fractures with significant soft tissue injury.  He was operated on some four times.  The wounds have healed but he is still unfit for work some eight months later.  He remains under assessment for further treatment.

3.        The defendant accepts that it failed to consider the use to which the clamp would be put i.e. to carry out a risk assessment.  If it had done so it would have recommended a new clamp, the cost of which is around £100.  Following a review of its procedures, risk assessments are always now carried out.  The company considers the intended use and if there is any doubt it will not proceed with a weld; in fact the company now hardly ever undertakes cast-iron welding.

4.        We have been referred to the principles set out in the English Court of Appeal decision of R-v-Howe & Sons (Engineers) Ltd [1999] 2 All ER 249 which have been applied in successive cases in Jersey and to which we have consideration in this case.  This was a one-off incident by a long-established but small business with a clean record.  The business can be traced back to 1863 and it was first incorporated in 1964.  This is the first ever known accident as a result of a defective weld.  At the time it employed ten to twelve people but with the recession it is now down to ten employees including the two working directors.  It is suffering like all other companies from the recession and is unlikely to make a profit this year.  There was no deliberate cost cutting and no time pressures.  It admitted the infraction promptly and co-operated with the Health and Safety Inspector.  The company has a track record of training young people and has a long standing relationship with Highlands for training and offering work placements as testified by Highlands.  The Directors have expressed great remorse for the injuries suffered by the employee. 

5.        In all these circumstances we feel able to reduce the conclusions of the Crown and we therefore impose a fine of £10,000 with costs of £2,500, and allow 28 days for payment.

6.        The Crown has asked us to mention however that it has not sought to claim some £9,000 of costs incurred through the Health and Safety laboratory in England for examining the failed components.  Historically such services have been provided through the UK Health and Safety Executive free of charge, but as a result of a change in the relationship between the Health and Safety laboratory in England and the UK Health and Safety Executive, such services will now have to be paid for.  Accordingly the crown have asked us to issue a warning that in future when such external advice is obtained, the Crown may well seek to recover the costs of the service from the defendant, thus substantially increasing the level of costs payable in prosecutions of this kind.

Authorities

Articles 5 and 21 Health and Safety at Work (Jersey) Law 1989.

R-v-Howe & Son (Engineers) Ltd (1999) 2 All ER 249.

AG-v-Euro Gardeners Ltd [2007] JRC 188.

AG-v-PAR Developments Limited [2007] JRC 061.

AG-v-Deerglen and Heitkamp [2009] JRC 019.