Jersey Unreported Judgments

Inferior Number Sentencing - Contravention of Articles 3, 5 and 21(1)(a) of the Health and Safety at Work (Jersey) Law.

[2014]JRC209A

Royal Court

(Samedi)

31 October 2014

The Attorney General

-v-

Jersey Gas Company Limited

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

Plea: Guilty.

Details of Offence:

A fire broke out whilst work was being carried out by Jersey Gas employees to repair a gas leak on the gasholder in Tunnell Street.  The fire posed such a serious risk that domestic and commercial premises had to be evacuated within half a kilometre of the gasholder and temporary accommodation arranged for residents.  Employees had been working in a hazardous area utilising a non-intrinsically safe tool - an electrical TEK gun, electrical leads and electrical generator.  The generic risk assessment was inadequate and did not identify the hazards and risks associated with the work activity.  The permit to work system was not sufficiently robust and did not identify a safe system of work.  The employees lacked sufficient competence to make sound engineering judgments.  There was a lack of management control regarding decision-making process for controlling the leakage of the gasholder.  Systems of work did not meet relevant industry standards.  The risk of ignition of leaking gas during the repair work could have been avoided by reasonably practicable measures to control and reduce the risk. 

Details of Mitigation:

Admitted infractions on indictment; treated as first offender; exceptional co-operation; immediate steps taken to remedy deficiencies.  Good health and safety record.  No failure to heed warnings.  Not deliberate or reckless breach with a view to profit.  Injuries suffered by the two employees were not serious, albeit through extreme good fortune.  Incident could not happen again: gasholder now empty and is to be de-commissioned. 

Previous Convictions:

2 minor motoring offences in 1979 and 2001.

Conclusions:

Total of fine £65,000, together with the

Prosecution's costs in the sum of £5,000

Costs incurred and discharged by the Jersey Health and Safety Inspectorate in the sum of £6,122.50.

Total due £76,122.50.

2 weeks given in which to pay.

Sentence and Observations of Court:

Conclusions granted.

Mrs S. Sharpe, Crown Advocate.

Advocate S. E. Fitz for the Defendant.

JUDGMENT

THE BAILIFF:

1.        Those who live in the area of the Jersey Gas premises in Tunnell Street and those involved in the wider community are unlikely to forget 4^th July, 2012.  On that day there was a fire in the gasholder on the premises and all those living within half a kilometre of the site had to be evacuated. Emergency temporary accommodation had to be provided and the Parish and the community rallied round to help and to offer support. 

2.        It transpires that the immediate cause of the fire was that the two men repairing a gas leak in the gas holder used a TEK-gun, which is a tool to drive screws into metal and was not designed to be used in a flammable or explosive atmosphere because it is powered by electricity.  It appears that it was the use of that TEK-gun which created a spark which triggered the fire.  But there was a wider cause.  The subsequent investigation showed that the safety procedures in place were insufficient and this explains how the men came to be using an unsafe tool in such a location; and this was despite the fact that the gasholder was known to be in poor condition and prone to leakage, so that it was shortly to be decommissioned. 

3.        The respects in which the company's procedures were not sufficient is helpfully summarised by the Crown Advocate at paragraph 72 of her summary, and I am not going to repeat them; but the report by the specialist inspector from the UK Health and Safety Executive summarised it as follows:-

"The immediate cause of the incident appears to be the use of a non-intrinsically safe tool within a hazardous area.  The root cause of the incident was the failure of Jersey Gas to implement suitable or sufficient management controls in recognition of the gasholder's continued lack of integrity."

And the failure of the company was particularly serious given the obvious risk of death, serious injury or damage to the public and to employees by reasons of the storage of gas in a residential area. 

4.        But there is much to be said in mitigation and Advocate Fitz has, if we may say so, put it forward most persuasively.  It must be said that the company has reacted to this incident in an exemplary manner; it has been extremely cooperative with the investigation, even to the extent of immediately supplying its internal report to the investigation notwithstanding, as one would expect, that that report was very frank in what it found; the company has decommissioned the gas holder; it has addressed all the concerns raised in the various reports; it has publicly apologised for the distress and inconvenience that it caused and has made financial reparation to those who have suffered loss; it has also publicly thanked the emergency services and the Honorary Police for their efforts and has made an appropriate tribute to them; it has an exemplary record in this field having been in business since 1918 with no previous incident. 

5.        It is also clear that despite the failures on this occasion it has taken its health and safety obligations very seriously.  We have been referred to the various steps that it has taken but we would mention in particular that it has voluntarily adopted stringent UK standards under some legislation known as COMA even though the gas stored here is a comparatively weak mixture, being 20% gas and 80% air, as compared with the UK where the gas stored is usually 100% gas.  We have also been referred to the many community and charitable activities of the company.  In short we are satisfied that this is a company which has a responsible attitude to its activities and to its place in the community. 

6.        Nevertheless, the Court has made it clear in the past that the objective of proceedings for health and safety offences in the workplace is to achieve a safe environment for those who work there.  Fines need therefore to be large enough to bring that message home to a company and to its shareholders and that involves taking into account not only the gravity of the incident but also the financial resources of the offending company.  This was of course potentially a very serious incident. 

7.        Advocate Fitz, on behalf of the company, very much in accordance with the responsible attitude which the company has shown as a whole, has not sought to argue that the fines should be reduced.  We have, of course, nevertheless considered whether they are at the right level but we think that, notwithstanding the powerful mitigation put forward, the fines are in total at the right level, given the gravity of this incident.  So we are going to impose the fines as requested and in particular we think a total fine of £65,000 is correct.  We have treated it in effect as one fine because, although there are three counts, they all arise out of the same failures.  But we do divide it up as suggested by the Crown. 

8.        As to costs, we make the order requested which is for a total sum of £11,122.50.  We should explain that that is a conventional contribution of £5,000 to the costs in Jersey but we are also ordering the company to pay the costs of £6,122.50 which the authorities in Jersey have paid to the UK health and safety authorities who came over to help and prepare a report.  The Court in AG-v-Raffray Limited [2009] JRC 053, issued a warning that the level of costs in health and safety prosecutions may rise in future should the Health and Safety Inspectorate in Jersey need to seek guidance and assistance from the Health and Safety Executive of England and Wales.  That is what has occurred here and we think therefore that those costs should be reimbursed. 

9.        So, in summary, a fine of £65,000 split between the three charges as the Crown has concluded and total costs of £11,122.50.  We note that this is to be paid within 2 weeks by bank transfer. 

Authorities

Health and Safety at Work (Jersey) Law 1989.

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

AG-v-Ernest Farley and Son Limited 2000/70.

AG-v-Raffray Limited [2009] JRC 053.

Safeguarding of Workers (Electricity at Work)(Jersey) Regulations 1983.