Jersey Unreported Judgments

Inferior Number Sentencing - contravention of Article 21 of the Health and Safety at Work (Jersey) Law 1989 as amended.

[2012]JRC220

Royal Court

(Samedi)

23 November 2012

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Kerley and Crill

The Attorney General

-v-

Constructions Industrielles de la Mediterranee SA

Spie Batignolles Camerons Limited

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

Constructions Industrielles de la Mediterranee SA

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 defendants formed a joint venture to construct the "Energy from Waste" incinerator at La Collette, for which they were to receive approximately £98 million.  The Crown's case was that they had, broadly speaking, worked independently of each other and failed to agree adequate safety systems in respect of the shared aspects of the project.  Towards the end of the project the first defendant was testing steam-generating equipment, including a large pressurised hydrocondensor.  At the same time the second defendant directed a bricklayer to fill a hole in the exterior wall of the building, immediately adjacent to a vent pipe outlet.  The purpose of the vent pipe was to carry steam away from the hydrocondensor in the event of a malfunction.  Just such a malfunction occurred, engulfing the bricklayer in steam and causing first degree burns.  An "Energisation Notice" had been supposed to warn all on site of the risks of the test.  It was not disseminated because three key safety officers were on holiday at the same time, and in any event the notice only referred to the steam generating equipment, not the vent pipe.  After the accident safety meetings were increased from monthly to daily, and permits began to be required for work near outlet pipes.  The Crown took these improvements as tacit acknowledgement of previous weaknesses in the system of work. 

Details of Mitigation:

Significant resources had been spent engaging consultants and producing voluminous safety documentation and site induction procedures.  None of the independent consultants spotted the weaknesses in the system.  The project was large and complicated, yet its overall accident rate was low by industry standards.  The injured blocklayer made a full and rapid recovery.  The defendants were fully cooperative with the investigation and admitted the infraction at an early stage. 

Previous Convictions:

First Defendant - one French conviction in 2009 for "involuntary homicide at work".

Conclusions:

Count 1:

£30,000 fine plus costs of £2,500.

Total: £30,000 plus costs of £2,500.

Sentence and Observations of Court:

Count 1:

£25,000 fine plus costs of £2,500

Total: £25,000 fine plus £2,500 costs and 1 month in which to pay.

Spie Batignolles Camerons 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 Constructions Industrielles de la Mediterranee SA above.

Details of Mitigation:

See Constructions Industrielles de la Mediterranee SA above.

Previous Convictions:

None.

Conclusions:

Count 1:

£30,000 fine plus costs of £2,500.

Total: £30,000 plus costs of £2,500.

Sentence and Observations of Court:

Count 1:

£25,000 fine plus costs of £2,500

Total: £25,000 plus £2,500 costs and I month in which to pay.

D. J. Hopwood, Esq., Crown Advocate.

Advocate N. S. H. Benest for the Defendants.

JUDGMENT

THE DEPUTY BAILIFF:

1.        This prosecution arises out of the construction of the new "Energy from Waste" incinerator at La Collette.  There were two main sub-contracts given that the employer decided that it wanted to have a single contractor responsible to the employer for the work that was being done and so a joint-venture company was formed which did not actually employ staff and we have before us today the two main sub-contractors who were indeed the shareholders in the joint-venture company, as we understand it. 

2.        There were two quite distinct parts of the job; a civil engineering part which was the responsibility of SBC for the construction of foundations, the concrete and structural steel super-structure, internal ventages to habitable work areas and external landscaping, and the process plant which had to be provided and commissioned for the energy from waste equipment which was the responsibility of CNIM. 

3.        The accident occurred because, in the course of commissioning, for reasons which were not the fault of either company, one of the safety features was activated so that steam, without warning, emerged from a vent pipe with some force.  It struck a sub-sub-contractor who was busy doing work around the point where the vent pipe emerged from the building.  He suffered some serious burns, unsurprisingly, because the steam which emerged was of a high temperature; it is said by the prosecution that the temperature was 500 degrees centigrade in the system.  It is said by the defendants that it was something just under 100 degrees at the point of emerging; the exact temperature does not seem to us to matter very much because it clearly was potentially a very serious accident indeed.  When the steam emerged the employee was blown off his feet and we have seen photographs of the injuries which he sustained.

4.        Fortunately he was able to return to work relatively swiftly and he has suffered no permanent injury.  But that was a matter of good fortune and the consequences could have been very serious indeed and indeed could, under some circumstances, have been fatal. 

5.        The Court is entirely satisfied that the two defendant companies were and are health and safety conscious; we are entirely satisfied there was nothing deliberate in the arrangements that were made, in the sense that there was no motivation to get additional profit by cutting corners.  We are satisfied the companies took appropriate remedial action afterwards and, given their size, the amount of work that they do and contracts that they have, satisfied that they have a good track record.  But nonetheless, this accident occurred, as I said, a serious accident, because, it seems to us, they were two really quite straight-forward mistakes.  First of all, three key people were permitted to be away at the same time for reasons that no-one has identified, and the fact that that happened indicates that the two companies were not properly talking to each other about health and safety systems.  They might both be, and the Court accepts they were health and safety conscious individually, but the fault arises here that they were not health and safety conscious sufficiently together; because if they had been these three key people would not have been away at the same time. 

6.        The second error seems to us to be that even if they had been present and even if what has been described as the "Energisation Notice" had been disseminated to all relevant parties, it is not entirely clear that the accident would have been avoided because it would not necessarily have given adequate warning to the block-laying sub-contractors of the risks that were involved.  This is because it did not precisely identify that commissioning a plant in one area of the building could result in steam emerging from a vent pipe in another. 

7.        The purpose of the Health and Safety Legislation is to ensure that companies do take their obligations seriously and, as I say, we are satisfied in this case that these two companies did, but also that companies give sufficient thought that they take effective measures to protect their staff.  Here for whatever reason, the companies did not take effective measures.  There is a slight suggestion in the Crown's summary that the Court should increase a proper fine where the defendant is a large or wealthy company.  We do not take the view that that is appropriate.  The proper fine is the proper fine; it may well be that this was not a suggestion intended by the Crown but we take the view that the proper fine is not liable to be increased simply because one has a company with large resources before the Court.  The means may well be relevant as to reducing the fine in cases where the defendant cannot afford to pay, but they do not serve to increase the fine beyond that which it should be in other circumstances. 

8.        We think that this potentially fatal accident was entirely preventable had proper systems been in place and despite the mitigation that there is, we think the charge has to be reflected by a significant fine because the accident was preventable.  We think the total fine ought to be in the sum of £50,000 and we therefore fine each defendant £25,000 on the charge which is before us.  In addition we order each defendant to pay the sum of £2,500 towards the costs of the investigation prosecution with one month in which to pay. 

Authorities

Health and Safety at Work (Jersey) Law 1989, as amended.

R-v-F Howe & Son (Engineers) Ltd [1999] Cr. App. R. (S) 37.

AG-v-Hamel Brothers and Another [2010] JRC 080.

AG-v-Flying Flowers Ltd [2009] JRC 210.

AG-v-R & M Sprinkler and SFS Fire Services t/a Hall & Kay [2011] JRC 139.

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