Jersey Unreported Judgments

[2009]JRC210

ROYAL COURT

(Samedi Division)

6^th November 2009

The Attorney General

-v-

Flying Flowers Limited

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

Plea: Guilty.

Details of Offence:

Flying Flowers had a pressurised hot water system to heat its nurseries.  The shunt pump within the system needed to be repaired.  An employee, Mr Pinto, was told that the system had been isolated.  In fact only the electrical supply was isolated and pressurised hot water remained in the system.  When Mr Pinto removed the bolts around the shunt pump motor, the motor blew off its mounting "like a cork out of a bottle" narrowly missing him.  However, Mr Pinto was drenched by scalding hot water which had escaped from the system under pressure.  He suffered 10% to 10.5% burns and was hospitalised for six days, but fortunately made a good recovery and had returned to work.  Flying Flowers had failed to recognise the high risks associated with the hot water pressure system; as a result Mr Pinto had received no formal training on the system, and was working unsupervised.  There were no instruction manuals or operating procedures in place. 

Details of Mitigation:

Prompt admission; good health and safety record; had taken remedial steps post accident to improve management of health and safety matters.  Company optimistic about future but experiencing current financial problems. 

Previous Convictions:

None.

Conclusions:

£2,500 costs.

Total:  £14,500.

Sentence and Observations of Court:

Conclusions granted, 2 weeks to pay.

S. Sharpe, Crown Advocate.

Advocate C. Hall for the Defendant Company.

JUDGMENT

THE DEPUTY BAILIFF:

1.        On the 17^th November, 2008, Mr Pinto had been instructed by Mr Marc Holton to remove a motor from the pump located in the boiler room which formed part of a pressurised heating system.  He was informed that a sub-contracting electrician had already disconnected the pump from which he understood, mistakenly, that the pump had been completely isolated from the pressure system.  In fact only the electrical supply to the motor had been disconnected and when he attempted to remove the motor, it formed part of the operational pressure system and as a result, the motor blew off its mounting when he undid the bolts securing it to the pump base; it came out like a cork out of a bottle because the water behind it was still under pressure.  It was extremely fortunate that the motor narrowly missed Mr Pinto but it hit the boiler behind him and fell to the floor.  However, he was drenched in scalding water which poured out of the pump base under high pressure as it continued to circulate around the system.  As a result of that accident the company Flying Flowers has been actioned under the Health and Safety at Work (Jersey) Law 1989, as amended.  Fortunately Mr Pinto has recovered from his injuries and has returned to work.  The Court accepts that he was not under any pressure by the company to do the work in question and that the company had understood that he was able to manage that work on his own. 

2.        The company's mitigation is that there has been no malice or intention, there is an honest relationship with the employees and that the company acted in good faith at all times.  Other pieces of mitigation have been put forward to us which it is unnecessary to repeat at great length but the Court has noted that the company has done much since the accident in order to consider health and safety at work matters.  We have noted in particular the steps that have been taken regarding the equipment that caused this particular accident to ensure a better system of work and that there has been a general overview of all health and safety matters and the Court notes with appreciation that translations of the manuals were necessary and are being provided to Portuguese and Polish staff.  The Court has also noted the good health and safety record and that this is the first occasion on which an infraction of health and safety has taken place. 

3.        Nonetheless, as was made clear by the Court in the case of AG-v-Par Developments Limited [2007] JRC 061 and indeed by an English Court of Appeal in the case of R-v-F Howe and Son, there is a clear underlying policy behind this legislation which the Court is bound to apply and that policy is to ensure that employers think and take relevant steps before accidents take place and not just afterwards.  In the case of Howe and Son (Engineers) Ltd [1999] 2 Cr App R (S) 37 the English Court of Appeal set out aggravating features; death resulting from the breach; failure to heed warnings; risks run specifically to save money and the following mitigating factors; prompt admission of responsibility, a timely plea of guilt, steps to remedy the deficiencies after they are drawn to the defendants attention, and a good safety record.  Just as in the case of Par all the mitigating factors appear to apply in this case and none of the aggravating factors appear to apply, but nonetheless it remains the objective of prosecutions for health and safety offences to achieve a safe environment for those who work in this Island and as the English Court said in Howe, a fine needs to be imposed to bring that message home where the defendant is a company, not only to those who manage it but also to shareholders.  In the case of employers in Jersey, it is sometimes necessary to impose a fine at a level which makes it plain to all employers that it is their function to put systems of work in place which are safe for their employees.

4.        In the circumstances the conclusions of the Crown are granted and Flying Flowers (Jersey) Limited are fined the sum of £12,000 with costs of £2,500. 

Authorities

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

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