Jersey Unreported Judgments

[2010]JRC206B

ROYAL COURT

(Samedi Division)

17^th November 2010

The Attorney General

-v-

Jubilee Scaffolding Company Limited

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

Plea: Guilty.

Details of Offence:

Company erected scaffolding to 40 Esplanade.  When scaffolding being dismantled from 8:00am on 16^th December, 2009, a scaffolding pole weighing 4-5 kilos was dropped by a junior employee from a height of eight metres, hitting a passer-by and causing her to suffer a broken collar bone.  Company failed to adequately control risks - e.g. by segregating the work area from pedestrians; by carrying out the work at a weekend or out-of-hours; by providing temporary "fans" to give overhead protection to the public when walking out from under the first lift of the scaffolding; by omitting some of the horizontal scaffolding poles, which allowed access to offices but also allowed pedestrians to walk outside the protection of the overhead boards as the victim had done; no warning signs were provided.  Had scaffold pole hit the victim's head, injuries could easily have been fatal. 

Details of Mitigation:

Prompt admission of liability and early plea; good character; good safety record; good references.  Employed Normandie as Health and Safety consultant.  Unfortunate accident regretted by company, now taking steps to ensure compliance with Health and Safety guidelines. 

Previous Convictions:

Minor parish hall enquiries; no PNC.  Treated as first offender. 

Conclusions:

Total:  £25,000 fine plus costs of £2,000, making a total of £27,000.

Sentence and Observations of Court

Total:  £25,000 fine plus costs of £2,000, making a total of £27,000. 

Ordered to pay within 24 months from 1^st December, 2010, at a rate of no less than £1,000 per month. 

Ms S. Sharpe, Crown Advocate.

Advocate P. M. Livingstone for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant has pleaded guilty to an offence under Article 21 (1)(a) of the Health and Safety (Jersey) Law 1989 by failing to comply with its duty under Article 5 (1) to conduct this undertaking in such a way so as to ensure that persons not in the employment of the company and who may be affected thereby, are not exposed to risks to their health and safety.  It failed to take any or any adequate steps to segregate the working area outside 40 Esplanade from members of the public whilst a scaffold was dismantled, as a result of which Isabel Amelia Greenwood suffered injury when she was struck by a scaffolding component known as a transom, which had been dropped from a height of approximately eight metres above her by one of its employees.

2.        Work had started that day shortly after 8am which was one of the busiest times of pedestrians going to work on the Esplanade.  Miss Greenwood was struck on the shoulder with a glancing blow sustaining a fractured collarbone from which she has made, fortunately, a complete recovery; although she is apparently still suffering delayed psychological effects.  The transom weighed 4 - 5 kilograms and if it had struck her on the head her injuries could well have been fatal.  If parish guidance had been followed neither Miss Greenwood nor any other member of the public would have been able to access the areas where they could have been struck by falling transoms.  Alternative measures could have been implemented to reduce the risk to members of the public such as diverting pedestrians altogether or dismantling the scaffolding out of hours when few members of the public would have been present. 

3.        We have had reference to the English Court of Appeal case of R-v-F Howe and Son (Engineers) Limited [1999] 2 Cr App R (S) 37 and, applying those principles, conclude that this was a serious departure from the appropriate standard.  There are no aggravating features such as a failure to heed warnings or a deliberate attempt to save money. 

4.        In terms of mitigation the defendant has admitted responsibility promptly and entered a timely plea of guilty and it has a good safety record.  It is clear to us that its staff are regularly trained on safety matters and the company is taking steps to enhance its safety procedures.  It has also produced for us a number of good references. 

5.        As made clear in Howe 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 other members of the public who may be affected.  A fine needs to be large enough to bring that message home where the defendant is a company, not only to those who manage it, but also to its shareholders.  A fine should reflect not only the gravity of the offence but also the means of the offender. 

6.        In this case the defendant has provided to us in timely fashion, its accounts for the last three financial years and a profit and loss statement up to the 10^th November this year.  In the last financial year to 31^st January, 2010, it had a turnover of £1.2 million and an operating profit of £70,000 after payment of the beneficial owner and sole director's remuneration and pension of £60,000.  It has an operating overdraft of £40,000 which is currently at or close to its limit and the company owes £130,000 to a supplier which is being discharged at the rate of £10,000 per month. 

7.        Where a company is privately owned as here, it is appropriate we think, for the Court to have some regard to the financial position of the beneficial owner who represents the company's source of funds and whose decision it will be whether or not to support the company.  The beneficial owner has recently emerged from a costly divorce and has no property which he owns, but he does own property in Cyprus worth €250,000 less a mortgage of €70,000; he has savings of £10,000 and a pension worth £80,000; he pays maintenance of £750 per month. 

8.        The Crown points out that there are many building sites on the Island and it is imperative that contractors do everything which is reasonably practicable to remove or minimise risk to the public.  The degree of risk in this case was high.  The potential injury could so easily have been fatal.  The duty on the employer is therefore high; to take such reasonably practical steps as are necessary to prevent or reduce the risk of injury.  The Crown has therefore sought a fine of £25,000 and costs in the sum of £2,000.  In doing so, Mrs Sharpe made it clear that the Crown had not taken into account the ability of the defendant to pay as disclosed in its accounts. 

9.        Mr Livingstone for the defendant did not seek to challenge the amount of the fine proposed by the Crown and we regard it as appropriate for the reasons expressed by the Crown.  He did address us on the defendant's ability to pay.  We have however considered the financial circumstances of the defendant carefully and are satisfied that it does have the ability to pay that fine out of its cash flow over a reasonable time which we assess at 24 months. 

10.      We therefore fine the defendant £25,000 and order it to pay £2,000 costs and allow it 24 months to pay from 1^st December, 2010, at the rate of no less than £1,000 per month starting from 1^st December, 2010.  If cash flow permits, we would expect the defendant to discharge this fine at a higher rate. 

Authorities

Health and Safety (Jersey) Law 1989.

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

AG-v-Charles Le Quesne [1991] JRC 165.