Jersey Unreported Judgments

[2010]JRC145

ROYAL COURT

(Samedi Division)

6^th August 2010

Before     :

M. C. St. J. Birt, Esq., Bailiff, and Jurats de Veulle, and Tibbo.

The Attorney General

-v-

Ommaroo Hotel Limited

The Plumbing Company Limited

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

Ommaroo Hotel 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:

The Ommaroo Hotel Limited undertook refurbishment work at its hotel premises; it failed to carry out an asbestos survey prior to work commencing.  As a result, an apprentice plumber employed by The Plumbing Company Limited, together with up to six other persons engaged in other trades as well as a director of the Ommaroo were unnecessarily exposed to the risk of inhaling asbestos fibres.  The fibres were released into the atmosphere when the apprentice removed four redundant radiator tails in the hotel dining room, which were lagged with asbestos and which flaked on the floor as the apprentice took the tails to a skip. 

Details of Mitigation:

Prompt admission of guilt; first offender; no intention to break the law; breakdown in communication between expert and hotel re asbestos survey; unreserved apology; bore £20,000 costs of clean up; survey now done; asbestos register in place; working with H & SI to ensure compliance with legislation.  Accounts provided. 

Previous Convictions:

None. 

Conclusions:

Count 1:

£15,000 fine, plus costs of £2,500.

Total:  £17,500 fine plus costs.

Sentence and Observations of Court:

Count 1:

£10,000 fine plus costs £2,000

Total:  £10,000 fine plus costs of £2,000 making a total of £12,000.

Time in which to pay: 28 days. 

The Plumbing Company 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).
1 count of:	Contravention of Article 21(1)(b) of the Health and Safety at Work (Jersey) Law 1989, as amended (Counts 3).

Plea: Guilty.

Details of Offence:

See Ommaroo above.

Details of Mitigation:

Prompt admission of guilt; first offender; no intention to break law; taken steps to remedy; remorse.  Accounts provided.  Young company created in 2007; very modest profits; recession; letters of appreciation from customers. 

Previous Convictions:

None. 

Conclusions:

Count 1:	£6,000 fine.
Count 2:	£6,000 fine.
Count 3:	£3,000 fine.

Total:  £15,000 fine plus costs of £2,500.

Sentence and Observations of Court:

Count 1:	£3,000 fine.
Count 2:	£3,000 fine.
Count 3:	£1,500 fine.

Total:  £7,500 fine plus costs of £1,000 making a total of £8,500. 

Time in which to pay: 8 months. 

Mrs S. Sharpe., Crown Advocate.

Mrs Kerley, director, on behalf of Ommaroo Hotel.

Advocate M. C. Goulborn for The Plumbing Company Limited.

JUDGMENT

THE BAILIFF:

1.        Asbestos is a very dangerous substance and it is clear from the summary of facts that neither defendant in this case took adequate steps to protect those involved in the works of refurbishment at the Ommaroo Hotel from the potential danger if asbestos was found to be present.  However we accept that in each case there is considerable mitigation.

2.        Taking first the Ommaroo Hotel Limited, although it was late in doing so the company had agreed for an expert to review the site before work began.  Unfortunately it is clear that there was a misunderstanding, which we accept was genuine on both sides, and therefore the expert did not turn up on the morning in question.  At that time the director of the Ommaroo who was in charge was away in London as we have heard and therefore the work went ahead, which it should not have given the failure of the expert to attend. 

3.        The Court is satisfied that the company has learned from this experience; a full survey of the whole property has now been carried out; the company was fully co-operative with the investigation; it has pleaded guilty; it has no previous convictions and we are satisfied that it has now taken steps to ensure that this sort of thing could not happen again.  Indeed the company had previously had a health and safety consultant who it employed from time to time and he had advised back in 2007 that the building should have an asbestos survey.  Unfortunately this was never carried out; if it had been this incident would almost certainly not have occurred. 

4.        Nevertheless, in view of all the mitigation which has been put before us, including in writing, we think the fine can be reduced a little, so the fine in the case of the company will be one of £10,000 and we order costs of £2,000. 

5.        As to the second defendant that company assumed that an asbestos survey had been conducted although they did not check to see if that was so.  Furthermore the lagging was disturbed because of the enthusiasm of a trainee to exercise initiative whereas a more experienced plumber would probably not have done so.  Nevertheless the whole point of health and safety legislation is to protect employees including those who are inexperienced.  The second defendant also has no previous convictions, it has a good track record in terms of helping people, for example it has accommodated students from the Prince's Trust and it to has taken steps to ensure that this should not happen again in future. 

6.        In the case of the second defendant, it is a young company as we have heard, it was only acquired by its present proprietor some 2 years ago and we have been referred to its accounts and we do take its financial position into account when deciding the appropriate level of fine.  As the case of R-v-Howe and Son (Engineers) Limited [1999] 2 Cr App R (S) 37 has made clear, whilst fines should be heavy enough to bring home to the company and the shareholders the importance of complying with health and safety matters, they should not in general be such as to imperil the very existence of the company.  Having regard to those matters we feel able to reduce the fines also in the case of the second defendant. 

7.        In your case on Count 1 there will be a fine of £3,000, on Count 2; £3,000, on Count 3; £1,500, that makes a total of £7,500 and we order costs in the sum of £1,000. 

8.        In the case of The Plumbing Company Limited we order 8 months in which to pay and in the case of the Ommaroo Hotel we order 28 days in which to pay. 

Authorities

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

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

AG-v-Julian Revell Smith [2005] JRC 076.

AG-v-The Grand Hotel and Swift Property Services Ltd [2006] JRC 146.

AG-v-Coastline PVCu Products Ltd and SEB [2009] JRC 152.

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

Health and Safety at Work (Jersey) Law 1989

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