Jersey Unreported Judgments

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

[2019]JRC077A

Royal Court

(Samedi)

3 May 2019

The Attorney General

-v-

Jubilee Scaffolding Company Limited

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

JUDGMENT

THE Lieutenant BAILIFF:

1.        On Friday 3^rd May, 2019, the Court sentenced the Defendant to a fine of £40,000 for a breach of Article 21(1)(b) of the Health and Safety at Work (Jersey) Law 1989, as amended ("the Law").  In addition, the Defendant was ordered to pay £5,000 towards the Crown's costs.  We reserved our reasons for the decision.  This judgment sets out those reasons.

2.        On 30^th August, 2018 the Defendant erected scaffolding at Westcote, Le Mont Félard, St Lawrence ("Westcote").  During the erection of the scaffold and thereafter a serious risk of electric shock, burns or electrocution was created when employees of the Defendant secured a live overhead mains power line to the scaffold structure. 

3.        The Defendant thereby contravened Regulation 18 of the Safeguarding of Workers (Electricity at Work) (Jersey) Regulations 1983, in that it failed to take sufficient steps, so far as reasonably practicable, to avoid the danger posed by the electric cable. 

4.        The Defendant company was registered in 1985.  It had approximately 25 employees at the time of the offence and is considered to be one of the largest scaffolding contractors in Jersey.  Ms Sarah Ann Waye is its Managing Director and appeared on its behalf at the hearing.  Mr Steven Thornally is a scaffold supervisor who is responsible for pricing and coordinating scaffolding projects. 

5.        Westcote is a detached, two-storey house, which is supplied with electricity by means of an overhead power line.  Its owner had engaged a roofing company to effect repairs to the property, and the Defendant was sub-contracted to erect scaffolding as part of the work.  The scaffolding consisted of a raised working platform to allow workers access to the roof.  A ladder access was created at the front of the scaffold structure.  The power line in question passed directly above this.  An employee of the Defendant later stated that it was only after installing the ladder access that he had noticed this state of affairs, but claimed that he had been unable to change the position of the ladder access, so he had, "...attached a metal part of scaffolding to the side barrier and I hooked the cable on it, so it was not in my way".

6.        Mrs Yvette Le Marrec, the owner of Westcote, noticed the proximity of the scaffold to the power line and asked an employee if it was to be insulated, to which he replied that it was not necessary and that she was not to worry.  During the subsequent Health and Safety Inspectorate ("HSI") investigation, all the employees working at the site were asked if they had engaged in a conversation about the electrical cable with Mrs Le Marrec; they all denied having done so.

7.        On 30^th August, 2018, Mr Thornally attended at Westcote to examine the completed scaffold and sign a handover certificate.  He later stated in interview, in our view astonishingly, that at no point had he been aware of the existence of the power line.

8.        Mr Glen Richardson is employed by the Jersey Electricity Company ("the JEC") and is responsible for the construction and maintenance of all overhead electrical lines in this Island.  On 27^th September, 2018 - by which time the hazard had been in place for some four weeks - he drove past Westcote and noticed the close proximity of the electrical cable to the scaffold structure.  He went to the property and, with Mrs Le Marrec's permission, inspected the scaffold and cable.

9.        Mr Richardson was very concerned to see that the cable was attached to a steel clamp, as it was possible that it could have chafed, thereby causing damage to its external insulation.  Where work is being carried out within three metres of an electrical cable, it is the practice of the JEC to fit a bright yellow sleeve, which provides full insulation protection.  Mr Richardson immediately procured insulation for the electrical cable from colleagues at the JEC.  The cable was subsequently examined and it was indeed found to have abraded to some extent.

10.      On 12^th December, 2018, Ms Waye and Mr Thornally were interviewed under caution.  Ms Waye was shown a photograph of the cable as secured to the scaffold.  It was put to her that this photograph illustrated the danger that had been created.  She frankly replied, "Absolutely".  Mr Thornally admitted that in the worst-case scenario, "someone could have been fried." 

11.      The Defendant has eleven convictions for 15 offences.  Most of these are vehicle-related, though we note that in 2010 it was convicted of contravening Article 21(1)(a) of the Law in relation to a scaffold pole's having fallen from a scaffold and injuring a member of the public.  For that offence it was fined £25,000.

12.      The maximum penalty for an offence under Article 21(1)(b) of the Law is imprisonment for a term not exceeding two years or a fine or both.

13.      As to culpability, we do not find that there was a deliberate or flagrant breach of the Law; had this been the case, such would have been a seriously aggravating factor.  Nonetheless, the Defendant signally failed to recognise and avert an obvious and serious - indeed, a life threatening - risk.  To make matters worse, it allowed the hazard to subsist for some four weeks, until the danger was noticed by another.  This, the Crown submitted, occurred against a background of previous failure by the Defendant to address risks to health and safety.  The Crown submitted that the level of culpability was high.  We accept that submission.

14.      This Court has long followed the guidance set out in the English Court of Appeal case of R -v- F Howe and Son (Engineers) Limited [1999] 2 CR App R (S) 37 when sentencing a defendant for statutory health and safety breaches.  Applying the Howe principles to the instant case:

(a) How far short of the appropriate standard did the Defendant fall?

We find that the Defendant's conduct fell substantially short of the appropriate standard, and that its offending was a serious breach of the law.  Mr Thornally totally failed, on his own account, to identify the grave risk posed by the electric cable on his initial site visit and at any point thereafter.  In this connection we are mindful of the words of Scott Baker J in the Howe judgment:

"... the law requires employers to do what good management and common sense requires them to do anyway, i.e. look at what the risks are and take sensible measures to tackle them.  Failure to fulfil the general duties under the Act are particularly serious as those duties are the foundation for protecting health and safety."

In short, this was a clear and obvious danger, which the Defendant simply chose to ignore.

(b) Was there any failure to heed warnings?

The homeowner, Mrs Le Marrec, as we have said, stated that she asked an employee during the erection of the scaffolding if the cable would be insulated, and was told that this was not required.  During the HSI investigation, however, as we have also already said, every employee on site denied speaking to Mrs Le Marrec.  We cannot make a definite finding on this issue without hearing evidence, and thus have sentenced on the basis that there was, on balance, no failure to heed warnings.  Before leaving this point, however, we wish to add that the danger was so clear and obvious, even to a layman, that a warning would have been superfluous.

(c) Profiting from failure or running risks to save money

There was no evidence before us that the breach occurred because of an intention to make financial gain therefrom.

(d) Prompt admission of responsibility plea

Ms Waye was frank in interview and the Defendant pleaded guilty at the first opportunity.

(e) Steps taken to remedy the defects

The JEC immediately organised for the cable to be sheathed to prevent the risk of harm from the damaged cable.  The Defendant can claim no credit for this.

(f) Good safety record

The Defendant, as we have said, has a number of convictions, the most serious of which dates back to 2010. 

15.      In terms of the seriousness of harm risked, the Crown submitted that there was a real risk of death or physical injury, and thus, even though mercifully no one was injured, the likelihood of harm was high.  We unhesitatingly accept that submission, and indeed the Defendant now appears to do so.

16.      In AG v Petroleum Distribution (Jersey) Limited [2018] JRC 190, the Court at paragraphs 19 and 20 of its judgment cited the Court of Appeal in Howe, thus:

"The objective of prosecutions for health and safety offences in the workplace 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."

and added:

"It seems to us that that is a comment which is directed more at the need to raise the level of fines generally to a point where, as was said in the local case of AG v Hamel Brothers Limited, it should 'sting'. That does mean the courts should take account of the disquiet expressed in some quarters that the level of fine for health and safety offences has been too low. As was said in Howe, "there has been increasing recognition in recent years of the seriousness of health and safety offences."

17.      As to mitigation, the Defendant was cooperative with the HSI's investigation and admitted the infraction at the earliest opportunity.  We accept that this was not a case involving the deliberate cutting of corners to maximise profits.  We note that the Defendant has implemented changes to improve its health and safety practices.  Ms Waye, who was commendably frank with us in her address, told us that all her staff had attended safety awareness courses.  The Defendant now offers a financial reward to any employees who report unsafe practices or accidents, and Ms Waye told us that this system was working very satisfactorily.  She said that she was "not happy" with Mr Thornally's failure to heed the existence of the hazard and that he had been issued with a formal warning.  She acknowledged that the courts needed "to send out a clear message" in cases of this nature.

18.      We received some financial information in regard to the Defendant Company and took this into account when assessing both the fine and its ability to make a contribution towards the Crown's costs.  It is unnecessary to set out that information here. 

19.      The Crown moved for a fine of £40,000 and an order for costs in the sum of £5,000.  Having taken into account the seriousness of the case, the mitigating factors and the Defendant's financial position, we considered those conclusions to be correct and granted them.  Having regard to certain cash flow considerations that Ms Waye brought to our attention, however, we allowed the Defendant four months in which to pay both sums.

Authorities

Health and Safety at Work (Jersey) Law 1989, as amended

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

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

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