Jersey Unreported Judgments

Inferior Number Sentencing - contravention of Health and Safety at Work (Jersey) Law 1989.

[2012]JRC216

Royal Court

(Samedi)

16 November 2012

The Attorney General

-v-

W Horn Brothers Limited

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

Plea: Guilty.

Details of Offence:

The defendant company had on average twenty two employees and an approximate annual turnover of £1.8 million undertaking general building, maintenance and construction work.  The case involved building work relating to construction of a first floor extension over an existing garage and boiler room.  Two employees were exposed to asbestos fibres when they removed the ceiling, subsequently identified as asbestos insulation board (AIB).  A further employee working in the area was exposed.  The defendant's written H & S policy made no mention of asbestos.  No asbestos awareness training was given to employees; no asbestos survey was done; no enquiry made by the defendant to the owner re possible presence of asbestos.  The Contracts Director had assumed the ceiling was cement-bound asbestos boarding.  This failure to identify AIB led to employees being provided with protective masks and overalls which were inadequate for the task. 

Details of Mitigation:

Admitted infractions on Indictment; no previous convictions.  Infractions committed through ignorance.  Fully cooperative with the investigation.

Previous Convictions:

None.

Conclusions:

Total: £20,000 fine plus costs of £2,500.

Sentence and Observations of Court:

Total: £12,000 fine plus costs of £2,500 and 14 days in which to pay. 

Mrs S. Sharpe, Crown Advocate.

Advocate L. A. Ingram for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        W. Horn Brothers Limited is here to be sentenced on a prosecution which alleges two counts of failing to comply with the Health and Safety at Work (Jersey) Law 1989 and regulations made thereunder.  The prosecution arises out of building work carried out at a property in St Martin involving the construction of a first-floor extension over an existing garage and boiler room.  

2.        Two employees of the defendant were exposed to asbestos fibres when they removed the ceiling of the garage and boiler room at the property.  The ceiling was subsequently identified as asbestos insulation board; a further employee was also exposed to asbestos fibres as well working in the area. 

3.        The risks of dealing with asbestos have become increasingly well-known and there is a convenient summary of the position in the case of AG-v-AA Langlois Haulage Limited [2010] JRC 023 made by the Bailiff at paragraphs 1-3 of the sentencing remarks in that case, and we do not see any need to repeat what the Bailiff said then but we have very much taken it into account. 

4.        In the present case one of the directors of the defendant company gave a question and answer interview under caution shortly after the offence came to light.  He said that the defendant had not included asbestos in its written health and safety policy because it recognised that the defendant was not licensed to remove certain types of asbestos.  When asked what formal training the defendant had given its employees regarding asbestos prior to the incident from an approved training contractor, he replied "none".  He said there was no formal written policy for the identification of asbestos because there was a policy that either he or another director would carry out inspections of properties prior to carrying out any works.  They had not in fact carried out an asbestos survey for domestic premises; on previous occasions they had asked for advice before carrying out such work.  When he was asked about risk assessments the director said the defendant carried out the risk assessments and he said they had method statements for work being undertaken and there was a form which was supposed to be completed.  On this occasion he had not actually written it down because he was going to supervise the work that would be done. 

5.        It is said by Advocate Ingram, for the company, that we should follow the case of AA Langlois Haulage and impose a sentence totalling £10,000 with costs.  We would like to make it plain that the Court will approach each case on its own merits and it does not think that it is appropriate, as it were, to set down a formal tariff of £5,000 for an offence of this kind.  It is clear that in this case the difficulties arose out of an error which was made by the director carrying out the risk assessment, he thought that he was looking at cement-bound asbestos, TAC boarding, but in fact he was looking at asbestos insulation board which could only be removed in accordance with the asbestos regulations. 

6.        People will make mistakes, of course.  However, if there is likely to be any doubts in the minds of the persons carrying out the assessment, they should make further enquiry in order to ensure that no mistakes have in fact been made in a critical sense.  Here there was a risk assessment which was not good enough because, having established that there was the possibility of asbestos in the ceiling, and it is clear that was established because the employees were required to go and get some protective equipment although it was not adequate for the job that was being done, the assumption was made that it was the cement-board asbestos and not the insulation-board asbestos.  It is that type of assumption that the legislation is designed to tackle.  The offence is created to drive up awareness of the need to have proper training for employees and to make appropriate enquiry, and if necessary, to carry out investigative tests of the material with which the contractor is dealing before the work is actually committed to.  This is the primary feature that the Court must bear in mind. 

7.        In the course of the argument we asked about the value of this particular job and, having reflected on that while we are considering sentence, we think it is appropriate to add this.  We note that committing the offence in order to increase the profit or reduce the loss would be an aggravating feature, and that does not apply here.  We think the size of the job however is not directly relevant to the offence committed because the risk to the employee is what the offence is designed to reduce. 

8.        In this case we are dealing with a contractor which has been in business in Jersey for a very long time and has an impeccable record of work ethic, as Advocate Ingram said, and a safe working history and that makes the fact of this prosecution particularly unfortunate for this company.  The Court recognises that.  The Court recognises that it was a solitary error of judgement.  Nonetheless, the offences of dealing with asbestos are there in order that the building trade becomes more and more aware of the need to take appropriate safeguards.  In the circumstances the Court thinks that although there is no doubt that the company has taken all appropriate steps following the coming to light of this particular offence, and indeed fulfils the mitigating features which arise which are set out in the case of R-v-Howe and Son (Engineers) Limited [1999] 2 Cr App R (S) 37.  The rationale for the regulations must not be overlooked.  Indeed, although there is no question of recklessness on the company's part on the evidence that has been put before us, it is the Court's view this was still a serious offence because it has exposed employees to risks to which they should not have been exposed. 

9.        Putting all those features together the Court thinks it is appropriate to sentence the company to a fine of £6,000 on each charge on the summons and order the company to pay £2,500 by way of costs.  So that would make a total of £14,500 and that is to be paid in 14 days. 

Authorities

Health and Safety at Work (Jersey) Law 1989.

AG-v-AA Langlois Haulage Limited [2010] JRC 023.

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

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

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