Jersey Unreported Judgments

Inferior Number Sentencing - Health and safety

[2019]JRC070

Royal Court

(Samedi)

26 April 2019

Before     :

Sir William Bailhache, Bailiff, and Jurats Blampied and Pitman.

The Attorney General

-v-

R J Le Sueur Limited

Sentencing by the Inferior Number of the Royal Court, following guilty pleas 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).
1 count of:	Contravention of Article 21(1)(b) of the Health and Safety at Work (Jersey) Law 1989, as amended (Count 2).

Plea: Guilty. 

Details of Offence:

RJ Le Sueur Limited ("the Company") is a small local building company which at the time of the offences had been engaged to carry out repairs following a burst pipe inside a pool house at a privately owned residence.  The work turned into major renovations due to the poor condition of the timber beams and floor joists, and the whole first floor structure needed to be removed and rebuilt.

 

The method used to remove the floorboards was by standing on adjacent boards and joists at first floor level, although some were knocked off from below.

 

On 6^th June, 2017, the day before the accident, a director of the Company saw an employee standing up at first floor level.  The director told him to get down immediately.  Other employees were present on site at the time of these instructions.  The director told the employee he should have been working from a trestle platform underneath to be safer.

 

On 7^th June, 2017, the day of the accident, the employees were demolishing the western section of the first floor structure.  Despite the incident the previous day, no instructions were given on how this should be done.  The employees adopted the same system of work they had followed previously i.e. pulling up the floor boards from standing on top of the floor structure with the intention of removing the joists from ground level, working from stepladders. The Company did not ensure that the expected safe trestle platform had been built and used.

 

Guard rails protecting the stairwell opening had to be removed as they were nailed through the floorboards.  There was nothing in place to prevent a fall of approximately 2.4 metres through the open stairwell to the ground below.

 

No decking or other protection was provided underneath the joists to prevent a fall through the open joists to the ground below. The risk naturally increased as more floorboards were removed and there were no trestles or platforms in place. An employee was standing on a joist when it suddenly snapped out of where it had been slotted into the beam in the middle of the room and he fell approximately 2.4 metres to the ground below landing on his back.

 

The employee underwent surgery to repair two spinal fractures he suffered as a result of the fall.  He also had a laceration to his head glued. The employee made an overall recovery however suffered from ongoing pain and sufficient disability to preclude him from returning to work.

Details of Mitigation:

Guilty plea, not a case of cutting corners to maximise profits and delay in 2018.

Previous Convictions:

None. 

Conclusions:

Count 1:	£20,000 fine.
Count 2:	£20,000 fine.

Total:  £40,000 fine. 

Costs order sought in the sum of £3,000. 

Sentence and Observations of Court:

Count 1:	£12,500 fine.
Count 2:	£12,500 fine.

Total:  £25,000 fine. 

Costs order made in the sum of £3,000.  

£10,000 to be paid within 10 days, and the rest to be paid within 6 months with liberty to apply.

C. M. M. Yates, Esq., Crown Advocate.

Advocate S. B. Wauchope for the Defendant Company.

JUDGMENT

THE BAILIFF:

1.        The defendant company is actioned by the Attorney General for breaches of the Health and Safety at Work (Jersey) Law 1989, as amended.  There are two charges which have been brought.  The first is that as an employer the company failed to discharge a duty to which it is subject under Article 3 of the law to ensure the health, safety and welfare at work of all employees so far as reasonably practicable.  The second charge is an allegation that there was a failure to discharge a duty to which the contractor was subject by Regulation 27 of the Health and Safety (Management and Construction) (Jersey) Regulations 2016 in that as a relevant contractor it failed to ensure suitable and sufficient measures were taken during construction work carried out at height to prevent any person from falling from such a height, so as to put that person at risk of personal injury.

2.        The fact that there are two charges is in one sense neither here nor there because both relate to the same conduct alleged by the Attorney General against the defendant company.  In essence, what occurred was that the defendant was contracted to carry out some redecoration of a building, repairing damage to the ceiling.  When it started that work, it became apparent that a major renovation of the building would be necessary because the timber beams and floor joists of the ceiling were poor and there had been evidence of significant water ingress; and so the whole of the first floor structure had to be removed and a new mezzanine floor constructed.

3.        Unfortunately, although a risk assessment was prepared and a method statement also was prepared, the method statement was not adequately followed and indeed one of the directors of the company accepted in the course of the work being done that the employees should not follow what the method statement set out, because it was accepted that the removal of the floor could be done from below using ladders.  It is apparent that should not have been accepted by the director of the employer company and it is clear from Schedule 7 of the regulations which I have mentioned that he was wrong to accept that because this was not temporary work and a proper system of works should have been set up.

4.        The Crown has treated this as being a highly culpable process by the contractor company for a number of reasons and we wish to say this.  First of all, this was a small company and it is important that small companies recognise, just as larger companies have to recognise, that the Health and Safety at Work regulations are there to ensure that employees do not suffer serious injury.  In any approach which the court takes to infractions of this kind the court wants to ensure that the building trade, including small firms, has the clearest of warnings that a casual approach to health and safety is simply not acceptable and in this case the employee in question did suffer serious injury.  So, the paperwork - the risk assessment and the methodology, and the method statement which is to be adopted - is an important part of ensuring the health and safety at work of employees and, in the context of the present case, the court thinks that the method statement existed but it was deficient.  It was certainly deficient technically because it was not dated or signed, but it goes further than that because if one looks at the definition of a safe work method statement under the 2016 regulations it requires that the employer in his statement identifies an activity comprised in the construction work that poses a risk, specifies the risk, describes the controlled measure that will be applied to the risk and includes a description of the equipment used in the work, the qualifications of the personnel doing the work and the training required to do the work safely; and under Regulation 13 of the same regulations every contractor engaged in a construction project must in the case of high risk construction work prepare safe work method statements in accordance with Regulation 19.  In case it is wondered whether this was high risk construction work, that is defined by Regulation 4 as involving work at height which clearly this did.

5.        So when the employees in question decided in fact not to work from ladders but to go above the floor which was being taken up at first floor level, they were working at height and putting themselves at risk and we think it is clear that the directors of the company realised that that was so.  Indeed, there was an argument between the director supervising the work and one of the employees in question because he was told in very firm terms that he should not be working as he was i.e. standing on the floor at first floor level.  It is obvious, is it not, that it is physically easier to do the work from above than it is to do from below and the employer should have been alert to the risks of the employees choosing a physically easier way of doing the work and ignoring the instruction which they had been given.  That is one of the purposes of having an appropriate methodology statement which ensures that the activity which is dangerous is identified, identifies the risk and sets out clearly how it is going to be dealt with.  So we think that the company failed in that respect. 

6.        We wish to emphasise that we do not regard the directors of the company in any sense as being bad people.  We think they were negligent.  They did not in this case follow the requirements of the law and the regulations and there were serious consequences for which we completely accept the directors are very remorseful.

7.        Having regard to all those facts we think that the real problem lay in the managing director, the person on site, not ensuring that the instructions which had been given to the employees were carried out.  He should have not left the site until the trestles from below were constructed or certainly part constructed so that he could be satisfied that work was being done.  Had that happened we think the accident would not have occurred. 

8.        So the question is what fine to impose?  We have looked carefully at the company's accounts.  We think that having regard to the figures disclosed by the 2018 accounts to impose a fine of £40,000 would be disproportionate to the company's financial circumstances and in the circumstances we think taking a global approach that the right fine would be the sum of £25,000 which for the purposes of the summons we will divide into £12,500 for Count 1 and £12,500 on Count 2.  In addition the company is to pay £3,000 towards the prosecution costs which have been incurred in this case.  We reduced the Crown's conclusions, as I say, having regard to the financial circumstances of the company and I add also that we accept there was no question in this instance of the company failing to take the appropriate steps in order make more money or to cut corners for some disreputable reasons.  It was just a question of negligence.

9.        We order the company to pay £10,000 within 10 days and the balance of the fine and costs can be paid over the next 6 months with liberty to apply.

Authorities

Health and Safety at Work (Jersey) Law 1989.

Health and Safety (Management and Construction) (Jersey) Regulations 2016. 

AG v Columbia Design and Build (CI) Ltd [2017] JRC 070

AG v John Paul Horgan and Unit 6 Joinery Limited [2018] JRC 040 

AG v Petroleum Distribution (Jersey) Limited [2018] JRC190

AG v K-LOK Scaffolding Limited [2019] JRC 044

R v F Howe and Son (Engineers) Limited [1999] 2 CR App R (S) 37

Sentencing Council definitive guidelines for health and safety offences (extract)