Jersey Unreported Judgments

[2009]JRC152

ROYAL COURT

(Samedi Division)

30^th July 2009

Before     :

M. C. St. J. Birt, Esq., Bailiff, and Jurats King and Liddiard.

The Attorney General

-v-

Coastline PVCu Products Limited

and

States Employment Board

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

Coastline PVCu Products Limited

1 count of:	Contravention of Article 21(1)(a) of the Health and Safety at Work (Jersey) Law 1989, as amended (Count 1).
1 count of:	Contravention of Article 21(1)(b) (Regulation 2(1) Health and Safety at Work (Asbestos-Licensing))(Jersey) Regulations 2008) (Count 2).

Plea: Guilty.

Details of Offence:

The States Employment Board (SEB) contracted Coastline to undertake refurbishment work at Housing owned properties on Le Clos de Roncier Estate.  The work was in two phases and involved over-cladding the soffits forming the underside of the outer edges of the rooves.  The first phase involved the properties built during the 1950s; the second phase involved properties built in the 1970s.  SEB had undertaken independent asbestos surveys of many of its properties, including those at Le Clos de Roncier.  The survey identified the presence of asbestos cement in the 1950s properties (work with this type of asbestos is not subject to the 2008 Regulations), and asbestos insulation board (AIB) in the soffits of the 1970s properties (work with AIB is subject to the 2008 Regulations).  Coastline undertook refurbishment of the first phase, 1950s properties, and was provided with the asbestos survey by SEB.  Coastline was also contracted for the second phase relating to the 1970s properties.  No asbestos survey was provided by SEB, who failed to disseminate the knowledge of the presence of asbestos to Coastline.  Coastline did not make enquiries of SEB as to whether or not AIB was present in the second phase properties.  An experienced joiner and a junior employee of Coastline found they could not over-clad the soffits to identify the underlying joists.  In doing so, they damaged the AIB and released fibres into the atmosphere.

Details of Mitigation:

Both defendants admitted infractions at earliest opportunity.  Infractions not committed deliberately.  Human error by SEB staff at Housing who overlooked the fact of the asbestos survey and failed to inform Coastline.  Both defendants had put new training schemes in place since incident.  Coastline had taken expert advice from Normandie regarding awareness and dangers of working with asbestos.

Previous Convictions:

None.

Conclusions:

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

Costs:  £3,000.

Total: £15,000.

Sentence and Observations of Court:

Count 1:	£4,000 fine.
Count 2:	£4,000 fine.

Costs: £2,000.

Total: £10,000.

Monthly repayments of £1,000.

States Employment Board

1 count of:

Contravention of Article 21(1)(a) of the Health and Safety at Work (Jersey) Law 1989, as amended (Count 1).

Plea: Guilty.

Details of Offence:

See Coastline above.

Details of Mitigation:

See Coastline above.

Previous Convictions:

None.

Conclusions:

Count 1:

£15,000 fine.

Costs:  £3,000.

Total: £18,000.

Sentence and Observations of Court:

Count 1:

£10,000 fine.

Costs:  £2,000.

Total:  £12,000.

To be paid within 14 days.

S. Sharpe, Crown Advocate.

Advocate N. S. H. Benest for Coastline PVCu Products Limited.

Advocate C. J. Dorey for the States Employment Board.

JUDGMENT

THE BAILIFF:

1.        It is well known that exposure to asbestos can lead to the development of serious and often fatal diseases.  Certain types of material containing asbestos are particularly dangerous and accordingly, the States have passed the Health and Safety at Work (Asbestos Licensing)(Jersey) Regulations 2008 which require that only licensed operators can undertake work involving these particularly dangerous materials.  Amongst these is asbestos insulation board which has been referred to in these proceedings as AIB. 

2.        These proceedings arise out of refurbishment undertaken by Coastline to properties at Le Clos de Roncier administered by the Housing Department.  Surveys were undertaken back in 2001 by Shuttlers.  These showed that in numbers 1 to 18 the soffits of the properties were made of asbestos cement, which is not as dangerous as AIB and is not the subject of the 2008 Regulations.  But certain other properties were built at a later date and the survey showed that these properties, which included number 23, contained AIB in the soffits.

3.        The refurbishment was carried out in two parts.  First of all numbers 1 to 18 and then the remainder including numbers 22 to 25.  Both phases were carried out by Coastline but for the second phase there was a different contract manager in charge on behalf of the Housing Department.  In error, Coastline were not informed by the Housing Department that numbers 22 to 25 contained AIB.  This was despite the existence of the 2001 survey and the fact that there was information on a database held by the Housing Department.

4.        The gravamen of the charge against the States Employment Board, which is the employee of all the Housing Department employees, is as described by the Crown Advocate.  They failed to communicate this important information to Coastline and they did not have in place adequate measures and procedures to ensure, so far as practical, that this did not happen.  In particular they relied upon written procedures rather than any form of additional training. 

5.        So far as Coastline is concerned, two employees carried out the work.  They had only recently been taken on although one of them was very experienced and was a good friend of the beneficial owner of Coastline, Mr Stratford, and in whom Mr Stratford placed great confidence.

6.        It appears that during the first phase it was not necessary to penetrate the soffits at all because the cladding could be done by bolting it to the walls.  It was assumed by Coastline that this could also be done in relation to the second phase.  However it transpired that this was not the case and it was in those circumstances that the soffits were penetrated in order to try and find the joists.  It was this action which resulted in the release of the AIB. 

7.        Dealing with Coastline first, Miss Benest emphasised that Coastline is a small firm with no previous convictions, Mr Stratford is the beneficial owner and he knew the experienced employee well as a very skilled and experienced craftsman.  As we have already said he had no reason to think that it would be necessary to make any holes in the soffits because it had not been necessary in the first phase.  This only became clear on site on the day this happened and a decision was taken there and then by the senior employee to make holes in the soffits in order to try and find the joists to which the cladding could then be fixed.  The employee showed initiative but it had unfortunate consequences in that it penetrated the soffits thereby releasing the asbestos.  Miss Benest has emphasised that, as a result of these offences, the company has now had a full review of its health and safety procedures and has amended them.  It had procedures beforehand but it accepts that it had not given its employees the necessary training in relation to asbestos.  Now all employees are to attend a course on asbestos and this was arranged before the summons was issued.  In short, she said that this was a most unfortunate incident.  It was not a case of reckless disregard by the company of its obligations; it was a combination of circumstances and a lack of information which they were not given by the Board.  The company has a responsible attitude and she asked that the fines be reduced.

8.        Taken in the round, we think that we can reduce the fines a little.  So the decision in relation to Coastline is that there will be a fine of £4,000 on each Count and £2,000 costs.  That makes a total of £10,000 in all and that must be paid at the rate of £1,000 per month.

9.        Turning to the Board, Miss Dorey has emphasised that there were written procedures in place and that the information concerning the presence of AIB in the soffits of these particular properties was available.  It was human error, she says, which led to Coastline not being informed.  However, the Board accepts that training programmes on the dangers of asbestos are also required.  Their reliance purely on written procedures was not sufficient to discharge their duties under the Law.  We do emphasise and accept that both the Board and the Housing Department take their responsibilities under this Law very seriously.  In particular the Housing Department has had surveys carried out on most of its properties in order to ascertain the presence of asbestos so that when work is undertaken people are aware of whether asbestos is there or not. 

10.      Miss Dorey argues that the fine for the Board should be no more than that imposed on Count 1 for Coastline.  We do not agree with that.  We think one has to look at the totality; both of the charges against Coastline arose out of the same set of facts.  The key factor in our judgment was that Coastline were not informed of the presence of AIB and that was the fault of the Board.  We accept of course that Coastline should have made enquires as to its existence and that was part of the basis of its plea but nevertheless, we think that, looked at in the round, the greater responsibility here lies with the Board.  However, we think we can reduce the conclusions against the Board as well to take account of the very unusual circumstances surrounding this case.

11.      In the circumstances we impose a fine of £10,000 and £2,000 costs and in their case we give them 14 days to pay.

Authorities

Health and Safety at Work (Asbestos Licensing)(Jersey) Regulations 2008.

Health and Safety at Work (Jersey) Law 1989.

AG-v-H & V Building Services Limited 2000/58.

AG-v-MHS Environmental Limited 2001/239.

AG-v-Trant Construction Limited [2003] JRC 114.

AG-v-Smith [2005] JRC 076.

AG-v-Dempsey [2005] JRC 085.

AG-v-Grand Hotel and swift Property Services Limited [2006] JRC 146.

AG-v-Amplus Limited [2007] JRC 134.

AG-v-Apex Contracts Limited [2008] JRC 095.

AG-v-Jardim t/a Buildrite Builders [2008] JRC 183.

R-v-F Howe and Son (Engineers) Limited [1999] 2 Cr App R (S) 37.

R-v-Board of Trustees of the Science Museum (1993) 3 All ER 853.