Jersey Unreported Judgments

Inferior Number Sentencing - Health and safety - reasons for the decision

[2019]JRC076A

Royal Court

(Samedi)

3 May 2019

Before     :

A. J. Olsen, Esq., Lieutenant Bailiff, and Jurats Ronge and Hughes

The Attorney General

-v-

Gas Services (Jersey) Limited

M. R. Maletroit, Esq., Crown Advocate.

Advocate C. Hall for the Defendant.

JUDGMENT

THE Lieutenant BAILIFF:

Introduction

1.        On Friday 3^rd May, 2019, we fined Gas Services (Jersey) Limited ("the Defendant") £20,000 for a contravention of Article 5(1) of the Health and Safety at Work (Jersey) Law 1989 ("the Law").  In addition we ordered the Defendant to make a contribution of £2,000 towards the Crown's costs.  We reserved our reasons for that decision.  This judgment sets out those reasons.

2.        The Defendant was sub-contracted to service and repair gas appliances at L'Hermitage Care Home, La Route de Beaumont, St Peter ("L'Hermitage"), including four condensing boilers.  The Defendant has admitted that it failed to ensure, so far as reasonably practicable, that staff and residents at L'Hermitage were not exposed to risks to their health and safety as a result of the works undertaken by the Defendant. 

The Defendant

3.        The Defendant company was registered in 2002.  It had four employees at the time of the offending, including Ian Mawson, who is the director and majority shareholder, and his son Arron Mawson, who is a minority shareholder.

4.        Arron Mawson is a trained gas engineer and is a member of the UK Gas Safe Register.  His qualifications relate to domestic appliances only, i.e. not to commercial ones. 

5.        Since 2015 Amalgamated Facilities Management Limited ("AFM") had sub-contracted the Defendant to undertake routine safety checks, servicing and repairs of the boilers and all other gas-fired appliances at L'Hermitage and its sister site, Beaumont Villa Dementia Care Centre. 

Background

L'Hermitage

6.        L'Hermitage provides nursing and residential care for up to 42 elderly residents, who occupy the ground and first floors of the building.

7.        There are four 100kW gas-fired, condensing boilers in the basement that supply the home with heating and hot water.  All four boilers are connected to flues that pass through the premises and convey the products of combustion through the roof.  The flues can be accessed via small service cupboards on each floor.  They are wrapped in insulation to prevent heat loss and to aid the passage of buoyant flue products. 

8.        In April 2017 a problem had arisen with Boiler 3.  It had been taken out of service pending the arrival and fitting of the requisite replacement parts. 

Carbon monoxide

9.        Carbon monoxide is a pernicious gas.  It is odourless and difficult to detect without specialist equipment.  Low exposure to it causes symptoms such as dizziness, nausea, shortness of breath and headaches.  Children and - more relevantly here - elderly people are particularly susceptible to the adverse effects of carbon monoxide poisoning.  In all age groups it can be fatal; death can be almost instantaneous if the levels are high enough, and fatalities will occur if the period of exposure to lower levels of the gas is significant.

10.      The mains gas in Jersey is a mixture of propane and air.  When propane is burnt with oxygen, the products are carbon dioxide and water vapour.  Except in laboratory conditions, the combustion is not completely efficient, and a small amount of carbon monoxide is also expected to be produced.

11.      The calorific value of the gas supplied by Jersey Gas can fluctuate over time.  It is therefore not possible to determine the calorific value of the gas used at L'Hermitage at the time of the offence.  There is a direct correlation between the calorific value of the gas and the carbon monoxide emissions of a poorly-combusting boiler.

12.      Due to its toxic nature, measures must be taken to prevent carbon monoxide accumulating, especially within an enclosed, occupied space.  Gas appliances are therefore designed to evacuate all products of combustion via a flue.

The facts

13.      On Friday 9^th March, 2018, the Defendant was instructed to install the replacement parts to Boiler 3 and bring it back into service.  The Defendant was also instructed to carry out scheduled annual safety checks and servicing of the boilers and any other gas-fired appliances at L'Hermitage and Beaumont Villa.

14.      Arron Mawson arrived on site at approximately 1:30pm that day.  He had with him a portable combustion gas analyser that had been supplied to him by the Defendant.  This instrument is used to measure gases - including carbon monoxide - that are produced during combustion. 

15.      At some point during his visit, Mr. Mawson discovered that the gas analyser that he had with him was not working correctly.

16.      The Defendant did not have a policy in place that made clear to its employees what they should do if the combustion gas analyser were to fail.  Furthermore, there was no policy or process to check the operation of its combustion gas analysers prior to the employees' attendance on site.

17.      In the absence of a working gas analyser, Arron Mawson decided to check the "flame picture" of the boilers with a view to ascertaining how well they were combusting.  He also conducted a smoke test on each of the flues.  This involved placing a smoke pellet at the base of the vertical length of each flue and visually checking for smoke rising from the flue terminations on the roof.  The check for smoke rising from the flues would have needed to be conducted from outside the building.  Arron Mawson then brought all four boilers into operation (without performing combustion analysis) and left the site.

18.      By not performing gas combustion analysis Arron Mawson did not establish whether the boilers were combusting safely, because he could not ascertain what levels of carbon monoxide they were producing.

19.      That same evening, staff and residents of L'Hermitage began suffering from the symptoms of carbon monoxide poisoning.  These symptoms continued and indeed worsened until the Sunday when the gas emergency service was contacted.  Staff reported developing headaches and feeling unwell, elevated pulses, a blurring of vision and difficulty in balancing when walking.  A member of staff contacted Ms Scarborough, the duty manager, who later provided a statement describing the moment when she had realised that the symptoms could be related to carbon monoxide poisoning:

"She [the member of staff] said they couldn't see well, her hearing was racing and their chests felt tight and other staff had similar symptoms. I asked "are the windows open?" and she said they were in the morning but the residents wanted them closed as they were cold.  I was suddenly struck with the thought it could be carbon monoxide.  I told Ann I'm coming in and I'm going to call Jersey Gas."

20.      At about 5pm on Sunday 11^th March, 2018, Mr Jamie A'Court, a Jersey Gas engineer, arrived on site.  The boilers had not been further serviced since Mr Mawson had left the site two days earlier.  Upon his arrival, Mr A'Court immediately turned off all the gas appliances at the premises.  He conducted a number of tests, including a combustion check on the boilers.  When Boiler 3 was examined, an alarm sounded on the gas analyser.  The test results showed that the carbon monoxide reading for Boiler 3 was 'OR' - this means "off the record", which we ascertained means off the scale.  The device can measure carbon monoxide up to 4,000 parts per million (ppm), so the analyser was detecting the gas in excess of that figure.  Mr A'Court tested the remaining boilers and found that Boilers 1 and 4 were also combusting poorly as a result of a gas-rich mixture of gas and air. 

21.      Mr A'Court turned on Boilers 2 and 4 and went to the first floor to conduct further tests.  His personal carbon monoxide alarm immediately sounded as he got out of the elevator; it showed a reading of 64ppm.  It should be noted that Boiler 3, which was suspected of producing the carbon monoxide, had been switched off for some time before this reading was taken and that windows at the premises had been opened.  In view of the earlier combustion check results, the symptoms experienced and the system of the boilers operating on a rotation, it is likely that, at its peak, the carbon monoxide level on the first floor would have been significantly higher than 64ppm.  Following his checks, Mr A'Court labelled all four boilers as 'Immediately Dangerous'.

22.      On 12^th March, 2018, Ian Mawson, Arron Mawson and Carl Whale of AFM attended at L'Hermitage and discovered that one of the four flues had come apart in the void.  It was established that the disconnected flue originated from Boiler 3.

Interviews

Arron Mawson

23.      Arron Mawson was interviewed under caution on 26^th June 2018.  He explained that, on his arrival at the site, he realised that the gas analyser in his possession was not working.  He said that he had intended to acquire a different analyser, but admitted that he took no steps to acquire one.  Instead, he relied on the flame test.  Mr Mawson was asked if he had considered postponing the work, to which he responded that he "... just wanted to get it done really, just wanted to get it over and done with".  He said that he planned to return on the following Monday to complete the work and conduct the combustion analysis then. 

The Defendant (represented by Ian Mawson)

24.      Ian Mawson confirmed that he was the Director of the Defendant, and was responsible for the administration and day-to-day running of the business, including quoting for projects and allocating work.  Arron Mawson worked solely as an engineer.

25.      He confirmed that tools, including gas analysers, are supplied by the Defendant.  The company owned two gas analysers and an air analyser which measures airflow.  He could not explain why the gas analyser in Arron Mawson's possession did not work, but would have expected him to "report back to me" if this was the case.  If he had been informed, he would have attempted to obtain a gas analyser from Jersey Gas.  This would have been the "preferred option". 

26.      Ian Mawson was asked what the company's view was of Arron Mawson's work at L'Hermitage.  In the circumstances, the first part of his answer may be considered surprising: "In a word, acceptable."  He did go on to accept, however, that his son should have "done the other checks".

Expert report

27.      An expert report was commissioned by the Health and Safety Inspectorate from Mr Steve Critchlow, who is a gas incident investigation officer in the employ of the UK Health and Safety Executive.

28.      Mr Critchlow noted that three of the four boilers that Arron Mawson serviced on 9^th March, 2018 had been recorded as combusting poorly on the Sunday, when Mr A'Court tested them.  He opined that the use of a combustion analyser is essential to check whether or not combustion is safe, and that diagnosis by flame picture is not, "valid on modern boilers."  He did not consider, "observation of the flame picture on this type of boiler to be an acceptable or credible alternative."

29.      Mr Critchlow further stated that the "measures taken [by Arron Mawson] to ensure safe combustion on the boilers were not adequate for the boiler type and were not consistent with the requirements of the manufacturer."  In his opinion, a smoke test was a, "legitimate and sensible check of the flues' integrity", but the engineer must also ensure that the flue is suitable and in undamaged condition.   Mr Critchlow noted that the flues at L'Hermitage were clad in insulation, which restricted Arron Mawson's ability to examine them.  Nevertheless, he considered that once smoke had been inserted into the flues, Mr Mawson should have checked along their length to see if smoke was leaving the flues at any point other than at the terminal, in order to declare the flue safe.

30.      Arron Mawson had earlier stated in interview that he had witnessed smoke leaving the flue terminals.  Mr Critchlow, however, opined that the speed at which people had become ill strongly suggested that the flue to Boiler 3 had become detached before or during the service of the boilers.  He considered it unlikely that the flue separation caused the poor combustion - rather, the poor combustion related to other defects in the boiler.

31.      Arron Mawson had left three of the boilers operating with poor combustion.  Mr Critchlow referred to the duty of gas engineers to leave an appliance or gas installation in a safe condition after he or she has performed work on it.  If its safety cannot be assured, then the engineer must make it safe by isolating the gas supply to the appliance or installation, and make a responsible person aware of the safety risk in writing.  

32.      Arron Mawson failed to take these steps.

Previous convictions

33.      The Defendant has no previous convictions.

The law

34.      The maximum penalty for an offence under Article 21(1)(a) of the Law (failing to discharge a duty to which a person is subject by virtue of Part 2 of the Law) is an unlimited fine.  Article 5(1) requires the employer to ensure that persons not in their employment who may be affected by the works undertaken are not exposed to risks to their health and safety.

35.      In AG v Petroleum Distribution (Jersey) Limited [2018] JRC190 this Court declined to adopt the English Sentencing Council Guidelines, which, it said, contain certain considerations that were "an unwelcome development" (para 21) of the approach taken in the English Court of Appeal case of R v F Howe and Son (Engineers) Limited [1999] 2 CR App R (S) 37.  (We shall henceforth refer to the first case mentioned in this paragraph as "Petroleum Distribution" and to the second as "Howe".)

36.      With this observation we respectfully agree.  In our judgment there is no place for a box-ticking approach to sentencing in this jurisdiction.  That said, the Court in Petroleum Distribution went on to state that the culpability and harm factors that are set out in the tables appended to the Guidelines,

"are relevant and helpful - thus the distinction between a case where there has been a deliberate breach or a flagrant disregard for the law and a case where there has been a minor failing which did not fall too far short of the appropriate standard is an entirely appropriate distinction. Likewise, an incident which causes death or physical or mental impairment or significantly reduced life expectancy falls into a different category from those where there has been minor injury. There is nothing very difficult about this analysis, but what is relevant is that one does not seek to pigeon hole an offence into a particular category of harm or culpability." (para 16)

Culpability

37.      With that in mind, we had reference to the Guidelines for the limited purpose of assisting us in assessing the culpability of the Defendant.  At page 4 of the relevant section thereof, the culpability of the offender is placed in the category "High" if the offender, "fell far short of the appropriate standard; for example, by ... failing to put in place measures that are recognised standards in industry."  Culpability will also be classified as "High" if there is evidence of, "Serious and/or systemic failure within the organisation to address risks to health and safety."

38.      In our judgment, both factors were present in this case.  There was a serious failing on the part of the Defendant and its employee, Arron Mawson, to ensure that the boilers at a home providing nursing care and residential care for elderly residents were operating in a safe and efficient manner, and that adequate checks were carried out on the boilers' flue system.  The level of culpability in this case is high.

39.      Howe sets out the considerations to be taken into account when sentencing a company for statutory health and safety breaches.  These have long been applied in cases coming before this Court,  and we follow them once more:

How far short of the appropriate standard did the defendant company fall?

(i)        In our judgment, the conduct of the Defendant fell far below the appropriate standard.  This was a serious breach of the health and safety legislation. Working with gas appliances requires a high level of care and skill to be exercised, having regard to the potentially fatal risk of harm.

(ii)       The Defendant sent Arron Mawson to undertake the work on commercial gas installations at L'Hermitage.  Mr Mawson's qualifications relate to domestic appliances only.  Although he may have gained experience while working on commercial installations, the standard of his work on this occasion, and the poor judgements he made while carrying out the work, together call into question his competence to undertake the work in the first place.

(iii)      Mr Mawson arrived on site without a working combustion gas analyser.  The Defendant had no policy or process to ensure the gas analyser was working prior to an employee attending on site.  Nor was there any policy or clear understanding as to what an employee should do in the event that the gas analyser failed.

(iv)      Arron Mawson thought it acceptable simply to observe the flame picture in order to establish whether the boilers were combusting safely and efficiently.  This was not an appropriate or indeed a safe way to proceed.  He should have isolated the gas supply to the appliances until safe combustion was assured.  Instead, he left the site without establishing whether the boilers were operating safely, and without knowing what levels of carbon monoxide they were emitting.

(v)       It appears that Mr Mawson also failed to check the flue system properly.  The Defendant did not accept that the flue was disconnected at the time he left the site; we noted, however, how quickly staff and residents became affected by carbon monoxide poisoning symptoms following his departure.

A failure to heed warnings:

(vi)      There is no evidence of any failure to heed warnings in this case.

Profiting from failure or running risks to save money

(vii)     The incident did not arise from cost-cutting measures.

Prompt admission of responsibility plea

(viii)    Arron Mawson and the Defendant (represented by Ian Mawson) were cooperative in interview, although no breach was admitted at that stage.  The Defendant entered an early guilty plea once criminal proceedings had been commenced.

Steps taken to remedy the defects

(ix)      Ian Mawson stated in interview that the Defendant had purchased a new gas analyser.

Good safety record

(x)       The Defendant has no previous convictions and has not been the subject of enforcement notices.

Harm

40.      As to the seriousness of the harm risked, as we have said, carbon monoxide is a pernicious gas.  In our judgment, the seriousness of harm risked in this case was at the top of the scale.

41.      As to the likelihood of harm, it was in fact suffered, in that both residents and staff of L'Hermitage suffered significant symptoms of carbon monoxide poisoning.  The Crown submitted that the likelihood of serious harm (i.e. serious injury or death) was moderate in this case.  In reaching this assessment, the Crown indicated that it had taken into account that carbon monoxide is an odourless gas and difficult to detect without specialist equipment, the large number of persons exposed to the gas, the duration of exposure, and the vulnerability of the residents who, by reason of their age and/or infirmity, were particularly susceptible to the adverse effects of carbon monoxide poisoning.  That submission was not challenged by the defence.  We accept it.  We pause here to mention that it is indeed fortunate that Ms Scarborough immediately recognised the symptoms reported as being of carbon monoxide poisoning and took urgent steps to address the danger.  We commend her for this.

Defendant's financial position

42.      The Defendant filed an affidavit of means and we were given further evidence as to its financial position during the hearing.  We noted that in 2018, the Defendant had a turnover of £295,495 and was operating at a loss of £14,641.  The Defendant had operated at a small profit in the preceding two years.

Mitigation

43.      In a spirited address, Advocate Hall pointed out that there was no legal requirement for Arron Mawson to be qualified in relation to commercial boilers.  He had consistently maintained that smoke had emerged from the flue exits in the roof of the property, the conclusion being that the flue to Boiler 3 must still have been connected at the time of the smoke test.  She accepted that Arron Mawson's failures "could have had terrible consequences" and that he had "made a bad judgment call"; however, she urged upon us that the culpability of the Defendant was not high in this case - a submission that we do not accept - and that there was no culture within the organisation of "taking short cuts" as far as health and safety are concerned.  Indeed, she pointed to the good safety record of the Defendant and added that it had acquired a, "top of the range gas analyser."  Advocate Hall reminded us that the Defendant had been cooperative in interview and had entered an early guilty plea.

44.      Turning to the financial position of the Defendant, Advocate Hall told us that, prior to this offending, this had been "a stable and profitable company", but all this had now changed.  The Defendant had lost its contract in relation to L'Hermitage, as well as several other contracts.  It had suffered reputational damage as a result of the commission of the offence.  A downturn in turnover in the order of £50,000 per annum was in contemplation and the Defendant now had no staff, other than Ian and Arron Mawson.  A fine of the order sought by the Crown "would bankrupt this company.  They would have to close it down."  She also challenged the order for costs sought by the Crown, not only as to quantum, but also as to principle.

Conclusions

45.      Crown Advocate Maletroit, for the Attorney General, submitted that the appropriate level of fine in this case would have been £75,000, but that in the light of the Defendant's financial position, the Crown was moving for a much lower fine, in the sum of £35,000.  In addition, the Crown sought a contribution from the Defendant to prosecution costs in the sum of £5,000.

Decision

46.      In considering the appropriate level of fine, the Court in Petroleum Distribution had regard to the following comments of the Court of Appeal in Howe:

"The objective of prosecutions for health and safety offences in the work place is to achieve a safe environment for those who work there and for other members of the public who may be affected. A fine needs to be large enough to bring that message home where the defendant is a company not only to those who manage it but also to its shareholders." (at para.255)

47.      The Court also had regard to the point made by the Court in AG v Hamel Brothers Limited [2010] JRC 080 that fines in such cases should "sting".

48.      We totally accept these propositions.  A clear message needs to be sent to those who breach health and safety legislation and thereby risk the lives and health of their employees and indeed others.  And in serious cases the fines should indeed sting.  We also accept, however, Advocate Hall's submission that a fine of £35,000 would carry with it the risk of bankrupting the Defendant.  There are probably cases that are so serious that the imposition of a fine sufficiently draconian to put the offender out of business would be no bad thing; but this is not, as we think, one of those cases.

49.       We do not consider that the Crown made adequate allowance for the financial position of the Defendant.  We also find that the Defendant has already been punished in substantial measure by loss of business and reputational damage following the commission of the offence.

50.      At paragraph 22 of Petroleum Distribution Sir William Bailhache, Bailiff, said:  

"... the reputation of the company and of the board is likely to be just as important as the quantum of a fine.  The "sting" will not be measured only in money.  It is important that this is recognised in the community to be true because companies of wealth, just as defendants of wealth, ought not to be able to escape opprobrium simply by payment of money which, at the end of the day, may or may not hurt very much.  Social conscience in our community works more subtly than that."

51.      The learned Bailiff in this context was speaking of wealthy offenders, but in our judgment, such considerations apply with equal force to reputable companies with few staff, comparatively low turnovers and commensurately smaller profit margins.  A good reputation can take a long time to earn and a matter of minutes to lose.   This was a one-off error of judgement, but it was a very serious one, and it has already cost this offender dear.

52.      Having regard to all the circumstances of the case, including the seriousness of the offence, the mitigation and the financial position of the Defendant, we reduced the Crown's conclusions and fined the Defendant £20,000.  As to costs, Crown Advocate Maletroit told us that the Crown had incurred costs in the order of £18,600 thus far; this would be in addition to the cost of the extra work load imposed upon the Health and Safety Inspectorate in the aftermath of the offending and in preparation of the case for court.  Whilst bearing its financial position in mind, we considered it entirely appropriate to order the Defendant to make some contribution towards the Crown's costs in this case, and ordered it to pay £2,000.   In view of its current cash flow difficulties, we allowed the Defendant a period of 18 months in which to pay the fine and the costs, though express the hope that it will begin making significant payments on account as and when trading conditions improve. 

Authorities

Health and Safety at Work (Jersey) Law 1989. 

AG v Petroleum Distribution (Jersey) Limited [2018] JRC 190. 

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

AG v Hamel Brothers Limited [2010] JRC 080.