Jersey Unreported Judgments

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

[2017]JRC070

Royal Court

(Samedi)

12 May 2017

Before     :

W. J. Bailhache, Esq., Bailiff, and Jurats Nicolle and Ramsden

The Attorney General

-v-

Columbia Design and Build (CI) Limited

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

1 count of:	Contravention of Article 21(1)(a) of the Health and Safety at Work (Jersey) Law 1989, as amended (Count 1).
3 counts of:	Contravention of Article 21(1)(b) of the Health and Safety at Work (Jersey) Law 1989, as amended (Counts 2, 3 and 5).
1 count of:	Contravention of Article 21(1)(g)(ii) of the Health and Safety at Work (Jersey) Law 1989, as amended (Count 4).

Plea: Guilty.

Details of Offence:

Over a nine-month period the company failed to manage health and safety and put both the public and workers at risk.  The site consisted of Queens House, St James House and New St James Place.  The majority of the works were undertaken by subcontractors.  

The Health & Safety Department received a complaint from a member of the public after they had witnessed a large concrete block fall onto the pavement from scaffolding.  On another occasion workmen were observed by the H&S department throwing materials out of the first floor window into a parked lorry and no measures had been taken to prevent persons from being struck.  The H&S Department also received a further complaint whilst the Company were carrying out crane works as there were no measures in place to protect either the public or the company (Count 1). 

Workmen were observed to be working next to an unprotected roof edge which exposed workers to a fall of around nine feet (Count 2).  A prohibition notice was served and within a matter of hours the notice was breached (Count 4). 

On nine occasions from April till November the Company breached several health and safety practices whilst working at height.  These included working close to roof edges where there was no protection to prevent falls between 9 and 18 feet.  These unsafe practices were addressed by inspectors attending the site on several occasions and also in attempts to speak to directors of the company (Count 3). 

A prohibition notice was served at noon and two hours later that same day workmen were observed on the same flat roof without appropriate measures in place.  Later that same day a workmen was observed walking over a parapet wall on the first floor carrying paving slabs along the edge of an unprotected roof edge (Count 4). 

Count 5 involved two occasions during the same day the Company failed to provide a suitable barrier at the lower edge of the sloping roof to prevent persons falling more than 6 feet 6 inches from the eaves.  An Inspectorate attended the site on both occasions (Count 5). 

Details of Mitigation:

Guilty plea, issues had now been addressed. 

Previous Convictions:

None.

Conclusions:

Count 1:	£8,000 fine.
Count 2:	£8,000 fine.
Count 3:	£10,000 fine.
Count 4:	£15,000 fine.
Count 5:	£8,000 fine.

Total: £49,000 fine.

Costs sought towards the prosecution in the sum of £5,000.

Sentence and Observations of Court:

The Court felt able to reduce the Crown's conclusions slightly due to the delay in bringing the prosecution and the remedial work undertaken by the Company.  The Court stated the main factor in reducing the Crown's conclusions was down to the remedial work undertaken by the Company.

Count 1:	£6,000 fine.
Count 2:	£6,000 fine.
Count 3:	£8,000 fine.
Count 4:	£15,000 fine.
Count 5:	£6,000 fine.

Total: £41,000 fine.

Costs ordered in the sum of £5,000.

R. C. P. Pedley, Esq, Crown Advocate.

Advocate M. J. Elks for the Defendant.

JUDGMENT

THE BAILIFF:

1.        The company Columbia Design and Build (CI) Limited is charged with five counts alleging breach of the Health and Safety at Work (Jersey) Law 1989, as amended.  The breaches took place between February 2015 and November 2015.  The evidence establishing the breaches is plainly shown by the photographs which have been taken and timed so one can see clearly when the offences were committed.  As a result of the offences Mr Kennedy the Chief Executive of the defendant company was called in for interview in December 2015 and gave some answers which clearly showed that he appreciated that the company had been in breach of its obligations under the Law and Regulations.  A decision was taken, we are told, by the Health and Safety Executive in November 2016 to prosecute and the Law Officers were instructed and the summons was issued in March 2017. 

2.        The Health and Safety at Wo0rk Regulations and the Law are there for an extremely important purpose.  The purpose is to ensure that employees have a safe system of work and it is quite clear it is just not good enough for an employer to delegate responsibility for ensuring that the regulations are complied with down to the employees whether it is the most junior of the employees or whether it is the site foreman or site manager.  The obligation lies on the employer to ensure that there is a safe system of work. 

3.        In this case it is quite plain that the employer di not concern itself sufficiently with ensuring that health and safety at work rules were complied with.  We have been provided, for example, with reports from a health and safety firm called Mickleover Safety Services Limited and, taking one example, there is a report dated 24th September, 2015, which highlights the need to "ensure scaffold handrail protection is in place while works are being undertaken at high level, check scaffold being used by joiners installing joist on ground floor level.. Any penetrations through floor slab need to be covered over for protection."  And then that report is made on 15^th October and again the first item "Ensure scaffold handrail protection is in place whilst works are undertaken at high level."  Now there is no doubt that those reports were received by the site manager or site foreman but nothing seems to have been done with them and that emphasises the point that we are making that it is the responsibility of the employer to put in place a system which ensures that the safety regulations are complied with and it was therefore the employer's job to ensure that he site foreman and site manager reported back with these sorts of concerns. 

4.        The scope of the charges in this case is quite wide, from failure to ensure adequate steps taken to ensure that members of the public were segregated from the employer's undertaking and debris fell from the site onto the pavement  (and clearly on one occasion part of a concrete block which would have caused very serious injury if not, potentially, death had there been a person underneath it), through to offences which made it plain that there were unprotected roof edges and an absence of guardrails such the employees might easily have fallen in excess of nine feet and caused themselves serious injury.  So these are serious offences and nothing that we are about to say takes anything away from the fact that these are serious offences. 

5.        The principles which the Court applies to sentencing in cases like this is firmly established.  The Court has adopted the principles laid out in R-v-Howe & Son (Engineers) Ltd [1999] 2 All ER 249 and at paragraph 10 of the Court's sentencing remarks in the first Deerglen decision (AG-v-Deerglen (Jersey) Limited [2009] JRC 019) Commissioner Clyde-Smith said this of the Howe sentencing factors:-

"Other matters that may be relevant to sentence are the degree of risk and extent of danger created by the offence; the extent of the breach or breaches, for example whether it was an isolated incident or continued over a period and, importantly, the defendant's resources and the effect of the fine on its business.

Particular aggravating features will include (1) a failure to heed warnings and (2) where the defendant has deliberately profited financially from a failure to take necessary health and safety steps or specifically run a risk to save money."

And at paragraph 11 the Commissioner refers to the statement in Howe:

"Particular mitigating features will include (1) prompt admission of responsibility and a timely plea of guilty, (2) steps to remedy deficiencies after they are drawn to the defendant's attention and (3) a good safety record."

And those principles we apply in this case. 

6.        We note that there were no injuries although as has been said frequently in the past that is a matter of chance.  We have noted that one of the counts on the Indictment, Count 4, concerns the breach of a Prohibition Notice and that of itself clearly shows a failure to heed warnings and is very serious in its potential ambit.  There is no evidence that the defendant has deliberately profited from a failure to take necessary steps or has run any risks to save money that is not being contended for.  On the other hand the offences were committed over quite a long period, between February and November 2015.  We are told that there is no financial factor in terms of the continuation of the business that we need to take into account. 

7.        On the other hand the defendant company pleaded guilty at the first opportunity and we have been provided with a statement from Law at Work Channel Islands Limited which is dated 5^th May this year but which shows that that company which provides health and safety consultancy services was instructed in December 2015 to review as a matter of urgency safety management systems across the entire operations; so in other words as soon as the defendant company was advised of the breaches of the law and the regulations it took prompt steps to ensure that it dealt with the criticisms which were being made by the Health and Safety Executive.  It is apparent from the Law at Work that there were a number of steps which have been taken, remedial action taken, and the assessment at the end of the appointment in 2016 was that the defendant company had discharged its responsibilities and implemented a safety management system across its construction projects and rendered all active sites safe.  So the Court commends the company for taking prompt steps to put right what it should never have allowed to go wrong in the first place.  We mention that because in the Crown's conclusions this is seemingly not recognised and it is a distinction from the Deerglen case, certainly the first Deerglen cases, where there is no evidence that any remedial work had been undertaken by the defendant. 

8.        We mention the timetable over which this took place and wish to add this, although with some hesitation, because the importance of ensuring safety at work is paramount and it hardly stands to the credit of a defendant company that law enforcement authorities across the board take longer than is appropriate to bring proceedings before the court.  We do think that in the case of these proceedings that have been brought to court for dealing with today, the delay is longer than is appropriate.  They should have been brought earlier and the evidence which would have justified bringing these charges, it was clearly there.  We cannot really understand why it has taken so long.  For the two reasons that the remedial work does not appear to have been recognised by the Crown in its conclusions and because of the delay in bringing the prosecution we are going to reduce the conclusions slightly.  I would like to emphasise that the remedial work is the main reason for so doing. 

9.        In the circumstances we are going to impose fines on the company as follows:- on Counts 1, 2 and 5 in the sum of £6,000, on Count 3 the sum of £8,000 and on Count 4, the breach of the Prohibition Notice, the sum of £15,000 and the total imposed is therefore £41,000.  In addition we order the company to pay prosecution costs in the sum of £5,000. 

Authorities

AG-v-Deerglen (Jersey) Limited [2009] JRC 019.

R-v-Howe & Son (Engineers) Ltd [1999] 2 All ER 249.

Costs in criminal Cases (Jersey) Law 1961.

AG-v-Hamel Bros [2010] JRC 080.

AG-v-Jubilee Scaffolding Ltd [2010] JRC 206B.

AG-v-Farley 2000/70.