Jersey Unreported Judgments

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

[2013]JRC256

Royal Court

(Samedi)

20 December 2013

The Attorney General

-v-

Cosgrove (1969) Limited

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

Plea: Guilty.

Details of Offence:

The defendant company was undertaking partial demolition and construction work at a property in St Mary.  An experienced employee was removing a concrete reinforced lintel above a window with an electric hammer whilst standing on an inadequate scaffolding platform when he fell a distance of approximately five feet ten inches to the floor below.  Fortunately, he suffered relatively minor injury and later made a full recovery but accident could have had a much more serious outcome.  The defendant had failed to carry out a risk assessment or to provide a safe system of work for the removal of the lintel.  The defendant had not perceived the risk involved and relied on its employee's considerable experience.  The employee had effectively been expected to plan, manage and control his own work and to keep himself safe. 

Details of Mitigation:

Full co-operation with investigation; admitted offence at earliest opportunity; concern for injured employee; took steps to rectify health and safety policies and procedures; company provided accounts indicating it had suffered financial loss of approximately £56,000 to 31^st January, 2013.  Fine could cripple ability to retain employees and continue trading. 

Previous Convictions:

One conviction in 1989: treated by the Crown as first offender. 

Conclusions:

But for parlous financial circumstances, the Crown would have moved for a fine of £15,000.  However, in view of the defendant company's inability to pay a fine of this level, the Crown moved for:-

Total: £7,500 fine plus £1,000 costs.

2 years given in which to pay.

Sentence and Observations of Court:

Total: £4,000 fine, 2 years in which to pay.

No order as to costs.

Mrs S. Sharpe, Crown Advocate.

Advocate S. M. J. Chiddicks for the Defendant.

Mr Alex Gillies as a Director of the Company present.

JUDGMENT

THE commissioner:

1.        The defendant company has admitted an infraction of the Health and Safety at Work (Jersey) Law 1989 following an incident where a very experienced employee, who had been dismantling a concrete lintel above a ground floor window of a bungalow that the defendant company was working on, fell five feet ten inches but fortunately suffered no serious injuries.  The defendant accepts that it failed to carry out a risk assessment for the removal of the lintel, relying on its employees' considerable experience to carry out the job safely.  This failure resulted in an unsafe system of work.  It was a matter of chance, in our view, that the employee did not suffer more serious injury. 

2.        The defendant has a good record and cooperated fully with the investigation, entering a guilty plea at the earliest opportunity.  It a small firm/company with a core of a limited number of long-term experienced employees which is now under straightened financial circumstances.  Its latest accounts showed it as trading at a loss with few liquid resources.  It is beneficially owned by its two directors who have been working together for some 40 years.  Mr Gillies, who is the director representing the company today, has written to the Court on 13^th November, 2013, a detailed letter in which he asks the Court to show mercy and leniency in any fine it imposes because of the crippling effect it would have on the defendant company and its remaining employees. 

3.        The Crown have taken this into account in reducing the fine it would have sought of £15,000 to £7,500 plus costs of £1,000.  As the English Court of Appeal in the case of R-v-Howe & Son (Engineers) Limited [1999] 2 Cr App R (S) 37 point out the standard of care imposed by the legislation is the same regardless of the size and resources of the company.  The objective of prosecutions for health and safety offences in the workplace is to achieve a safe environment for those who work there and any fine needs to be large enough to bring that message home both to the managers and to the owners but it should not be so large as to imperil the earnings of the employees or create a risk of bankruptcy; save for offences that are so serious that the company concerned should not actually be in business and that is clearly not the case here. 

4.        We have considered the matter carefully and we think that ordinarily, on the facts of this case, we would have imposed a fine of around £10,000 as being appropriate, but in the light of the defendant's financial circumstances, we are prepared to reduce that to £4,000 as we consider that anything more than that will imperil the earnings of its employees and we are going to give the defendant company 2 years to pay.  In the circumstances we are not going to make an order as to costs. 

5.        Therefore the decision of the Court is to impose a fine of £4,000 with 2 years to pay. 

Authorities

Health and Safety at Work (Jersey) Law 1989.

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

AG-v-Hamel Bros Ltd and Jersey Royal Company Ltd [2010] JRC 080.

AG-v-R and M Sprinkler Installations Limited and another [2011] JRC 139.

AG-v-R and M Sprinkler Installations Limited and another [2011] JLR N 30.

AG-v-Peter Green (Builders) Limited [2012] JRC 225.

AG-v-Cosgrove (1969) Limited 1989/10.

AG-v-Cosgrove (1969) Limited [1989] JLR N 6c.