Jersey Unreported Judgments

Inferior Number Sentencing - Health and safety

[2019]JRC120

Royal Court

(Samedi)

28 June 2019

Before     :

T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Crill and Austin-Vautier

The Attorney General

-v-

Sonnic Limited

Nelio Mendonca

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

Sonnic Limited

1 count of:

Contravention of Article 21(1)(a) of the Health and Safety at Work (Jersey) Law 1989, as amended (Count 1).

Plea: Guilty. 

Details of Offence:

On the 12^th July, 2018, at Appledore, La Rue de la Parade, Boulivot, in the Parish of St Saviour ("the Property"), acted in contravention of Article 21(1)(a) / 23(1) of the Health and Safety at Work (Jersey) Law, 1989.  Failed to discharge a duty under Article 3(1) of the said Law, which requires, so far as is reasonably practicable, ensuring the health, safety and welfare at work of all employees.  Failure to comply with Article 3(2)(a) to provide and maintain systems of work that are, so far as is reasonably practicable, safe and without risks to health.  Failed to provide a safe system of work to clean the roof of the Property, which involved working at height.  Failure to comply with Article 3(2)(c) of the said Law to provide such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of employees.  Failed to provide adequate instruction, training and supervision to ensure, so far as is reasonably practicable, that two employees were not placed at risk to their safety while cleaning the roof of the Property.

 

On Tuesday 10^th July, 2018, two workers from Sonnic were sent to the Property on instruction from Mr Mendonca to begin cleaning the roof.  The job of the two employees that day was to apply a bleach solution to the roof, using a pressurised spray bottle, to kill the moss.  Both men climbed up to the roof using an extension ladder in the rear garden to spray the bleach solution onto the roof surface; taking it in turns as the spray bottle had to be replenished a number of times. One employee walked onto the roof itself, specifically the lower part with the shallower slope.

 

Two days later on Thursday 12^th July, 2018, the same two employees were sent back to the Property under instruction from Mr Mendonca to finish cleaning the roof.  They arrived at the Property at about 9 a.m. and were met by one of the owners before recommencing the job.

 

Sonnic use vans equipped with an integral water tank that supplies a hose and brush system for wet cleaning.  This system is a "reach" system that has a telescopic handle and allows the operator to have extended reach when cleaning, for example, allowing the cleaning of windows from ground level.  This wet brush system was to be used to clean the roof.

 

The two operatives positioned the extension ladder at the rear of the house and one of the employees ascended with the wet brush system connected to the water supply in the van.  He climbed onto the sloping roof above the gutter, where the pitch of the roof was not as steep and began cleaning the roof surface using the brush and hose, starting at the top.  As he cleaned the water flowed down the roof, making the roof tiles where he was standing wet.  He moved his feet, slipped and fell from the roof to the concrete patio below ("the Incident").  As a result of the above failures, serious injury (four broken ribs, bruising and swelling) was caused when he slipped and fell from the roof of the Property.  The second employee was then immediately afterward, instructed to complete the job with the same equipment.

Details of Mitigation:

No previous health and safety infractions / incidents of any kind. 

Early admission. 

No evidence that breach was for financial gain. 

New systems in place. 

Previous Convictions:

None.

Conclusions:

Count 1:

£50,000 fine.

Costs order sought in the sum of £5,000.

Sentence and Observations of Court:

Count 1:

£40,000 fine with 2 months to pay.

Costs order made in the sum of £5,000 with 2 months to pay.

Nelio Mendonca

1 count of:

Contravention of Article 23(1) of the Health and Safety at Work (Jersey) Law 1989, as amended (Count 1).

Age: 47. 

Plea: Guilty. 

Details of Offence:

See above.

Details of Mitigation:

See above.

Previous Convictions:

See above. 

Conclusions:

Count 1:

£5,000 fine.

Sentence and Observations of Court:

Count 1:

£3,000 fine, to be paid at a rate of £250 per month.

R. MacRae, Esq., Attorney General appeared for the Crown.

Advocate A. M. Harrison for the Defendants. 

JUDGMENT

THE DEPUTY BAILIFF:

1.        On the 12^th July, 2018, an employee of Sonnic Limited fell from a roof of a property in St Saviour. that he had been cleaning and he sustained fractured bones and bruising.  During that time he was under the control and direction of Mr Nelio Mendonca, a manager employed by Sonnic Limited. 

2.        We do not think it necessary to go into great detail relating to this incident because it has been fully explored by the Attorney General in the facts that he has deployed before us.  Although the assessment of the work contained within the quote that we have read indicated that there was to be the use of a tower in order to provide a safe system of work, no tower was in fact used and supplied and the victim and a colleague were sent on two occasions to clear the roof with the use only of an extendable ladder.  No protective measures were taken at all so it seems to us, and on the second occasion the victim was using a hose with a "reach-brush" system and he slipped on the roof made wet as a result and fell onto a paved area.  After the accident Mr Mendonca instructed the victim's colleague to continue to clean using in effect the same unsafe system.

3.        It is clear to us that both the company and Mr Mendonca failed to provide adequate equipment or to take appropriate measures to control the risk to their employees working at height.  There was no safe system of work. 

4.        We therefore consider the matter against the tests of R v F Howe and Son (Engineers) Limited [1999] 2 Cr App R (S) 37, and the first question we ask is how far short of the appropriate standard did the company and Mr Mendonca fall?  We agree, as appears to be accepted by the defence, they fell substantially short on this occasion and this was a serious breach of the law.  As we have said they failed to put in a safe system when the quote specified a tower, and neither the company nor Mr Mendonca followed the company's own procedure and policies in its health and safety policy. 

5.        On the second question in Howe, we do not think that there was any failure to head a prior warning.  We think that this heading of the analysis deals with external warnings and not internal consideration given by the individuals involved. 

6.        On the third question, we do not think there has been any profit obtained by the company or by Mr Mendonca by reason of this failure, nor was that in anyway a motivating factor.  We do not think that there was any deliberate flouting of the safety protocols or provisions. 

7.        There was an initial denial of culpability which is unfortunate, but culpability was accepted by both of the defendants before us when summonsed to appear before this Court. 

8.        We do not note any immediate steps to remedy the situation, particularly in the light of the fact that the victim's colleague continued to clean, under, apparently, the same system.  We do recognise however, that very substantial steps have been taken by the company since the incident, including the appointment of new advisors to address health and safety concerns. 

9.        It is clear that both the company and Mr Mendonca up until this time have had a good safety record in the sense that there are no recorded convictions against them for breaches of the law, notwithstanding the fact that the company has been in existence for a substantial period.  In our judgment culpability on this occasion was high and there was a substantial risk of serious harm.

10.      Turning then to the question of appropriate sentence we give particular weight to the fact that this is, over the life of the company, the first ever health and safety infraction and we have also considered the financial material deployed before us.  In our view the correct sentence is with regard to the company a fine of £40,000 with 2 months to pay.  With regard to Mr Mendonca £3,000 to be paid at £250 per month. 

11.      We also order the company to pay costs in the sum of £5,000 as requested by the Attorney General, and we also allow time to pay of 2 months.

Authorities

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

AG v Jubilee Scaffolding Company Limited [2010] JRC 206B. 

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

Extract from the Sentencing Council definitive guidelines for health and safety offences