Jersey Unreported Judgments

[2010]JRC080

ROYAL COURT

(Samedi Division)

23^rd April 2010

Before     :

Sir Philip Bailhache, Kt, Commissioner and Jurats Fisher and Kerley.

The Attorney General

-v-

Hamel Bros Limited

The Jersey Royal Company Limited

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

Hamel Bros Limited

2 counts of:

Contravention of Article 21(1)(a) of the Health and Safety at Work (Jersey) Law 1989, as amended  (Counts 1 and 2).

Plea: Guilty.

Details of Offence:

Jersey Royal and Hamel Bros were closely linked in business.  Jersey Royal focussing on growing and marketing potatoes, Hamel Bros holding property and land, some of which was leased to Jersey Royal.  Jersey Royal employed up to 500 employees.  At the time of the accident Hamel only had one employee and a director.  The companies occasionally exchanged labour when necessary for maintenance work etc, cross-charging each other.  An employee of Jersey Royal and an employee of Hamel were asked to power wash the roof of a property owned by Hamel but leased to Jersey Royal.  The work was under the control of a director of Hamel who had instructed the work as landlord of the premises.  The employee of Jersey Royal fell approximately 6 metres through a skylight and suffered a broken wrist, broken ribs and a cut to his chin.  Fortunately he later made a full recovery.  The employee of Hamel suffered no actual injury but had been placed at risk of falling from or through the roof. 

Details of Mitigation:

Both companies fully co-operated with investigations and entered timely pleas; extensive steps had been taken to remedy the deficiencies in managing health and safety; companies had good safety records in that this was their first offence whilst working in the farming industry which was inherently dangerous and with a workforce of up to 500 employees at the height of the season. 

Previous Convictions:

None.

Conclusions:

Count 1:	£10,000 fine.
Count 2:	£10,000 fine.

Total:  £20,000 fine plus costs of £2,500 making a total of £22,500.

Time in which to pay: 14 days.

Sentence and Observations of Court:

The Court observed that fines for serious breaches of the Law, where the lives of employees have been placed at risk, should sting, both to punish the defendant and also to encourage other employers to heed their obligations.  The Court took the view that in cases such as this, fines of or even exceeding £50,000 would not be out of place, even where the infractions have been admitted.

Conclusions granted.

The Jersey Royal Company Limited

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 Hamel Bros above.

Details of Mitigation:

See Hamel Bros above.

Previous Convictions:

None.

Conclusions:

Count 1:

£10,000 fine, plus costs of £2,500.

Total:  £12,500 fine.

Time in which to pay: 14 days.

Sentence and Observations of Court:

The Court observed that fines for serious breaches of the Law, where the lives of employees have been placed at risk, should sting, both to punish the defendant and also to encourage other employers to heed their obligations.  The Court took the view that in cases such as this, fines of or even exceeding £50,000 would not by out of place, even where infractions have been admitted. 

Conclusions granted.

S. Sharpe, Crown Advocate.

Advocate J. C. Gollop for the Defendants.

JUDGMENT

THE commissioner:

1.        It is very fortunate that this prosecution is not taking place against a background of the death of an agricultural employee.  Bearing in mind that the employee in question fell head first through a roof light at a height of eighteen feet from the ground, it is almost miraculous that more serious injury was not suffered.  Two employees were in fact sent up to clean the roof of an agricultural shed in circumstances where, as the defendant companies now candidly admit, no real thought had been given to their safety.  In effect, the employees were expected to look after themselves.  These were, therefore, very serious breaches of the obligations placed on employers by the Health and Safety at Work (Jersey) Law 1989.

2.         We wish to reiterate that fines for serious breaches of the law where the lives of employees have been placed at risk should sting, both to punish what are grave infractions and to encourage other employers to heed their obligations.  Applying the principles of the English Court of Appeal case of R-v-F Howe and Son (Engineers) Limited [1999] 2 CrAppR (S) 37 which has been applied many times in this Court, we think that fines of or even exceeding £50,000 would not be out of place, even where the infractions have been admitted. 

3.        In this case there are no aggravating features such as cutting corners to save money, or failure to invest in proper safety equipment.  There were serious mistakes in an area of activity that is maintenance, which was peripheral to the defendant companies' main operations.

4.        In mitigation we have been addressed very comprehensively by Advocate Gollop and we accept that there is a great deal to be said.  Both defendants have admitted the infractions and have co-operated fully with the investigating officers.  More importantly, in the immediate aftermath of the accident, they have taken significant steps to ensure that there is no ambiguity about where responsibility lies in future in the organisation.  A new health and safety assistant manager has been appointed, a new executive structure has been put in place, and staff training has been extended into new areas.  All these measures should ensure that what went wrong on this occasion never happens again. 

5.        Counsel has placed before us impressive evidence as to the care which The Jersey Royal Company generally takes for the welfare and safety of its employees.  Long before it became a legal obligation, comprehensive instructions had been prepared in relation to health and safety which had been translated into Portuguese and Polish, the languages of most agricultural employees.  It is regrettable that a previously unblemished record in this respect has been lost and we accept that the prosecution has, in itself, been a significant punishment for the defendant companies. 

6.        Nonetheless we have to impose financial penalties which reflect the breaches of the regulations and the fact that the lives of two agricultural employees were placed at risk.  Having given anxious consideration to all the submissions of counsel, we have decided that the conclusions of the Crown Advocate fairly reflect the mitigating circumstances and the conclusions are accordingly granted. 

7.        Jersey Royal Company is accordingly fined £10,000 and Hamel Bros Limited is fined a total of £20,000.  Each defendant company will pay costs not exceeding £2,500 towards the costs of the prosecution.  Each defendant has 14 days in which to pay their fines. 

Authorities

Health and Safety at Work (Jersey) Law 1989.

Construction (Safety Provisions)(Jersey) Regulations 1970.

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

AG-v-Stansell QVC Ltd 1999/176.

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

AG-v-Mel Owers (Painters and Decorators) Ltd [2007] JRC 209.

R-v-Board of Trustees of Science Museum [1993] 3 All ER 853.