Jersey Unreported Judgments

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

[2012]JRC224

Royal Court

(Samedi)

30 November 2012

Before     :

Sir Michael Birt, Kt., Bailiff, and Jurats Marett-Crosby and Nicolle

The Attorney General

-v-

G. E. A. Lister & Sons Limited

J. F. Germain & Son Limited

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

GEA Lister & Sons Limited

1 count of:	Contravention of Article 21 of the Health and Safety at Work (Jersey) Law 1989, as amended (Count 1).
1 count of:	Contravention of paragraph (1) of Regulation 2 of the Health and Safety at Work (Asbestos-Licensing)(Jersey) Law Regulations 2008, as amended (Count 2).

Plea: Guilty.

Details of Offence:

Germain occupied premises at 25 Commercial Buildings, St Helier.  Lister was contracted by Germain to carry out building works at the premises, including taking down existing studwork.  Lister is a small company with three employees.  No information was given to Lister about asbestos in the area of the works.  Lister failed to request any such information from Germain.  Two of Lister's employees exposed to inhaling airborne fibres when, whilst wearing ordinary working clothes and using crow bars, they stripped out approximately eight or nine 8' x 4' sheets of asbestos insulation board (AIB) over the course of a day.  Estimated total area of AIB removed was 23-25 square metres.  Tradesman on the site suggested the boards might be AIB.  Lister took a sample to the official Analyst who confirmed that the sample was AIB.  Notwithstanding the analyst's results, Lister emplpoyees returned to the site, wearing disposable overals and masks which were unsuitable and ineffective for the task, cleared up the site and placed the damaged AIB in bags, thereby exposing themselves for a second time to the risk of inhaling asbestos fibres. 

Details of Mitigation:

Admitted infractions on Indictment; no previous convictions.  Co-operative with HSI.  Accounts filed by Lister indicated the company was in some financial difficulty. 

Previous Convictions:

None.

Conclusions:

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

Total: £12,000 fine plus costs of £2,500.

Sentence and Observations of Court:

Count 1:	£3,750 fine.
Count 2:	£3,750 fine, plus costs.

Total: £7,500 fine plus costs of £1,000 and 3 months in which to pay.

J. F. Germain & Son Limited

1 count of:

Contravention of Article 21 of the Health and Safety at Work (Jersey) Law 1989, as amended (Count 1).

Plea: Guilty.

Details of Offence:

See Lister above.

Details of Mitigation:

Admitted infractions on Indictment; no previous convictions; co-operative with HSI.

Previous Convictions:

None.

Conclusions:

Count 1:

£10,000 fine, plus costs.

Total: £10,000 fine plus costs of £2,500.

Sentence and Observations of Court:

Count 1:

£10,000 fine plus costs of £1,000.

Total: £10,000 fine plus costs of £1,000 and 12 months in which to pay.

Mrs S Sharpe, Crown Advocate.

Advocate M. P. Cushing for Lister.

Advocate E. L. Burns for Germain.

JUDGMENT

THE BAILIFF:

1.        This is another case involving a failure to take proper steps to avoid the release of asbestos fibres during building works.  The Court has, on a number of occasions, emphasised the dangers of asbestos and this danger is highlighted in the information given to us this morning by the Crown Advocate to the effect that UK figures show that in that country, asbestos is the single greatest cause of work-related deaths and in 2010, approximately 89 people died every week from asbestos-related disease.  This compares with 35 people dying every week in road deaths during that year. 

2.        The Crown Advocate has described the facts very helpfully; basically J. F. Germain & Son Limited was the employer who occupied the building in question, and they failed to take adequate steps to ascertain the existence of the asbestos insulation board before the work was undertaken, or to inform the contractor about the position G. E. A. Lister & Sons Limited was the contractor.  They failed to have in place the training and other measures to prevent or reduce the risk of exposure to asbestos.  As a result, in the circumstances described by the Crown Advocate, Mr Lister and his son, the only two employees of Lister, were exposed to asbestos fibres. 

3.        We turn now to consider each defendant in turn.  First of all the Lister Company.  We do accept, as Mr Cushing said, that there is extraordinarily strong mitigation in this case.  First, it was not expected that there would be asbestos in this particular partitioning; secondly, once the risk of it was drawn to Mr Lister's attention, he immediately took a sample to the laboratory for analysis.  Thirdly, when it was identified as containing asbestos, he sealed the room and he and his son then bagged the boarding which had been taken down, although this was in fact a foolish and unwise step because, of course, although they sought to take precautions with masks, they did not do so properly and it was at that stage that Mr Lister and his son were exposed to further risk.  But fourthly, having done this, Mr Lister then immediately approached Health and Safety and asked for their assistance in finding the right people to deal with the position.  He has, throughout, been extremely open and entirely cooperative and indeed it was his actions which brought this to the attention of the authorities.  We have no doubt from his affidavit that he is very remorseful particularly as it is of course his son who may be affected by this. 

4.        Next, we have heard of the positive steps which they have taken by going on courses and obtaining certificates to try and make sure that they are far more alert to the risk of asbestos and that this sort of event will not happen again. 

5.        Finally we have had the financial position described to us.  An affidavit has been filed and the accounts have been exhibited.  It is quite clear that, as with so many companies in the building industry, there has been a downturn in business.  This is a small company with the employees only being Mr Lister, his son and his wife in a part-time administrative capacity.  It is a long-standing business but it is of a modest size.  We are quite satisfied from the information we have been given that, notwithstanding the allowance that the Crown has made, if we were to impose a fine of the size requested by the Crown, it might well imperil the future of the company and we think that would be an undue penalty for the particular facts of this case.  We also, of course, take into account that although there are two counts, they both really arise out of the same incident and we should therefore take the matter in the round.  Doing the best we can and making allowance for the specific facts of this case, so that it should not be taken as any form of precedent, we propose to reduce the overall fine to one of £7,500.

6.        The fine therefore will be one of £3,750 on each of the two counts.  We reduce the costs to £1,000 and we give you 3 months in which to pay. 

7.        Turning to Germain, we accept there is much mitigation in this case.  The company simply did not know about the asbestos but the fault lies in the fact that it had not taken adequate steps to ensure that it knew about the position.  This company too has been entirely open and cooperative with Health and Safety, it has reviewed its procedures and its policies, and it had an asbestos survey carried out immediately.  It too has a good record.  As we say it has been cooperative and we have heard apologies from the company for the fact that it put Lister in this position by not alerting that company to the risk. 

8.        In the case of this company, it too has suffered from the downturn, but we have not had sight of the accounts and it has not been suggested in this case that a fine at the level asked for would imperil the future of the company.  If any such submission is to be made it is well known that it has to be justified by reference to accounts and affidavits. 

9.        In all the circumstances we think that the level asked for by the Crown here is fair.  So therefore we are going to impose a fine of £10,000, but similarly we are going to reduce the costs.  So we make a costs order of £1,000 and as requested by your advocate, we give you 12 months in which to pay. 

Authorities

Health and Safety at Work (Jersey) Law 1989.

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

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

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

AG-v-Ommaroo Hotel Ltd and The Plumbing Company Ltd [2010] JRC 145.

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

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

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