Jersey Unreported Judgments

[2010]JRC205

ROYAL COURT

(Samedi Division)

15^th November 2010

The Attorney General

-v-

States Employment Board

Sentencing by the Inferior Number of the Royal Court, after conviction at trial on 7^th October, 2010, on the following charge:

Plea: Not Guilty but found guilty at trial on 7^th October 2010.

Details of Offence:

Crew member working on a tug boat suffered a crushing injury to his right foot on 22^nd April, 2008.  All toes amputated and permanent disability the result.  The incident occurred when the crew member was required to stand near to a rotating mechanism in order to load a line onto a capstan.  The crew member's right foot was placed inside the turning mechanism so he could be close enough to load the line.  Another crew member activated the motor without warning.  The crewman's foot was crushed as the machine rotated. 

There should have been a mandatory system of an oral warning before the motor was activated.  In fact it was left to the crew to devise a system; some shouted, some did it on a "nod".  The potential existed for two crew members to use different systems at the same time and this is what happened on 22^nd April, 2008. 

The lack of a safe system can be traced back to a failure to perform a proper risk assessment when the machinery was first modified in 2006.  When a risk assessment was finally performed in 2008, it was inadequate and failed to comply with industry guidance.  It recognised that the operation was hazardous and scored the task 16 out of 25.  The employer reduced that rating to 15 on account of the crew's training.  However, that risk rating of 15 was reduced to just 4.  The employer's only justification for doing so was that the equipment used was of good quality.  The quality of the equipment made no difference to the risks posed by the turning mechanism. 

Even after the accident in April 2008, the employer failed to introduce a safe system of work.  A new written procedure was provided to staff but it failed to require a mandatory warning. 

Although the incident was a one-off, the failure to provide a safe system extended over a long period and was caused by a basic and fundamental failure of health and safety. 

Details of Mitigation:

The tug boat had experienced no other serious accidents and health and safety features were in place including a management system.  Steps had been taken to review health and safety systems after the incident.  Staff were properly trained. 

Previous Convictions:

2009:- failure by States Employment Board (Housing Department) to inform contractor that particular buildings carried asbestos risks. 

Conclusions:

Total:  £40,000 plus costs of £10,000 with 14 days in which to pay. 

Sentence and Observations of Court:

The States Employment Board had fallen well short of the standard expected of an employer.  There was a failure to provide a safe system in respect of an obvious hazard for a long period of time.  A safe system would have been simple and cheap to introduce.  No credit for guilty plea.  Fine should be large enough to bring home the message that health and safety must be maintained in the workplace which includes sea vessels just as much as land based working environments.  The Court took into account the mitigation but granted the Crown's conclusions. 

Conclusions granted. 

H. Sharp, Esq., Solicitor General.

Advocate C. R. G. Davies for the Defendant.

JUDGMENT

THE commissisoner:

1.        The States Employment Board has been convicted after a three day trial of failing to provide a safe system of work on the "Duke of Normandy" as a consequence of which its employee Mr Le Voguer was seriously injured and is permanently disabled. 

2.        In summary, the capstan and gypsy represented an obvious crushing hazard and there should have been in place a safe system of work for its use, namely a mandatory requirement for an oral warning to be given by the operator before its use.  Instead it was left to the crew to decide what system to operate so that on the 22^nd April, 2008, the crew member operating the motor decided not to give an oral warning and Mr Le Voguer was expecting one with, as the Crown says, catastrophic consequences. 

3.        In 2006 the capstan and gypsy were modified to address a possible health risk to the crew but that modification created a new and more serious risk that was not properly assessed and the hazard identified.  This is the only serious accident on the "Duke of Normandy" to date; it is clear that the captain and crew took pride in their work and were experienced and well trained.  Health and Safety management structures were in place and some risk assessments had been conducted. 

4.        There was some suggestion at trial that different considerations might apply to a vessel at sea where training was the key factor with the crew being more responsible for their safety but the Health and Safety Law applies to vessels just as much as land based working environments and, as the Crown commented, one might think that the sea requires more and not less care to be taken. 

5.        We have had reference to the English Court of Appeal decision in F Howe and Son (Engineers) Ltd [1999] 2 Cr App R (S) which makes it clear that it is impossible to lay down any tariff for these offences with each case being dealt with on its own particular circumstances.  We conclude that the defendant has fallen well below or well short of the appropriate standard in failing to meet the reasonably practicable test.  It seems to us that the requirement for an oral warning by the operator before engaging the motor on the capstan and gypsy was an obvious and easy safety system to compulsorily impose upon the crew.  It was not an isolated incident in that there was no system in place for some time.  As against that there has been no failure to heed warnings and there is no question of cost cutting.  The defendant has a good safety record albeit that it was convicted of a previous offence under this legislation and it does not have the benefit of a guilty plea. 

6.        The Crown have referred us to AG-v-Deerglen (Jersey) Limited [2009] JRC 134 where a fine of £50,000 was imposed after a guilty plea upon a building contractor and AG-v-Raffray Limited [2009] JRC 053 in which a fine of £10,000, again after a guilty plea, was imposed on a firm of engineers.  However, as made clear in Howe, there is no tariff and the circumstances of these cases are different.  The objective of prosecutions for Health and Safety offences in the work place is to achieve a safe environment for those who work there and for members of the public who might be affected.  A fine needs to be large enough to bring home the message and in this case the States Employment Board has clearly got considerable resources. 

7.        The Crown seeks a fine of £40,000 and costs of £10,000, of those costs £6,000 relate to the fees of the expert witness called at trial and the balance to the cost of the Prosecution.

8.        We have considered carefully the mitigation put forward by Mrs Davies, some of which we have already mentioned and we accept that the vessel was properly manned with well trained crew who operated a stop system and that there was a risk assessment process in place albeit one that did not identify this particular risk.  We also accept that steps have been taken following the incident, although we note that the operating procedure brought in the day after the incident still fails to make a requirement for an oral warning to be made or given.  In summary we note that there have been changes at every level within the States Employment Board.  However, we conclude that the Crown's conclusions are correct and we are therefore going to grant those conclusions. 

9.        We therefore impose upon the defendant a fine of £40,000 and order it to pay costs of £10,000.  We allow fourteen days in which to pay. 

Authorities

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

AG-v-Deerglen (Jersey) Limited [2009] JRC 134.

AG-v-Raffray Limited [2009] JRC 053.