Jersey Unreported Judgments

Inferior Number Sentencing - health and safety infraction

[2020]JRC089

Royal Court

(Samedi)

22 May 2020

Before     :

R. J. MacRae, Esq., Deputy Bailiff, and Jurats Thomas and Averty

The Attorney General

-v-

States Employment Board

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

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 29^th November, 2018 a break and partial fingertip amputation injury with some permanent disfiguration was caused to the left hand ring finger of a seven year old pupil in a gate at Grouville Primary School.

 

The gate, together with sports fencing and a further gate, was part of a project to update sports facilities at the school.  The gate itself was supplied and fitted by St Helier Ironworks.  It was overseen by the Education Department with ultimate responsibility resting with the States Employment Board.  The project was completed in early September 2016.

 

The gate was not of a suitable design as when it was opened past 110 degrees it caused a pinch point between the metal bars of the gate and the metal bar of the fencing.  This defect was not noted at the time the gate was ordered by St Helier Ironworks, or at any time subsequently by SEB or its agents, until the accident occurred.  This fact despite the SEB being aware of the risk of finger trapping in doors/gates in schools in the Island as had occurred in a number of recorded incidents and a warning sent by e-mail to all head teachers in March 2018.

 

The defendant failed to adequately oversee the installation of the gate so that the design of the gate would negate any risk of injury.  The defendant failed to act on a clear risk that they were well aware of.  The gate was fitted without any or any adequate oversight or subsequent safety inspection.

Details of Mitigation:

Cooperative with the Health and Safety Inspectorate's investigation.  Early guilty plea.  Not a deliberate cutting of corners and immediate action was taken by the defendant after the accident to remedy the specific issue and health and safety in schools more generally

Previous Convictions:

The defendant has a previous breach resulting in serious injury to a pupil in 2014.  The SEB was responsible for previous breaches in 2009, 2010 and 2017 which did note relate to schools and so were not treated as previous convictions by the Court.

Conclusions:

Count 1:

£20,000 fine.

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

Sentence and Observations of Court:

Count 1:

£50,000 fine.

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

C. R. Baglin, Esq., Crown Advocate.

Advocate L. A. Ingram for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The States Employment Board (the "SEB") falls to be sentenced today for contravention of Article 21(1)(a) of the Health and Safety at Work (Jersey) Law 1989, it being agreed that the persons exposed to the failure to discharge the SEB's duty not to expose persons to risks to their health and safety were limited to school children at Grouville School. 

2.        The SEB is a corporate body which employs all States of Jersey employees including those employed by the Department of Children, Young People, Education and Skills ("CYPES").  As such it is responsible for health and safety of all pupils whilst on public school premises in Jersey. 

3.        Grouville School upgraded its external play and sports facilities in 2016.  The project included site preparation and ground works for the installation of a new Astroturf pitch which in turn included some new perimeter fencing and two new gates, one of which was to be inserted into existing fencing to create a new opening between the playground and the Astroturf pitch.  The SEB subcontracted the works to GWM Engineering and Salvage Company Limited trading as St Helier Ironworks ("St Helier Ironworks").  St Helier Ironworks had been providing services to the Education Department and its predecessors for some 35 years.  St Helier Ironworks were fully aware that the gates were to be used by primary school children.  Indeed their quote for the job is entitled "Grouville School Fencing and Gates".

4.        There has not been a great deal of evidence produced to the effect that the specification provided by the SEB to St Helier Ironworks was greater than one plan, but it is said that there is documentation that may be missing in that regard.  St Helier Ironworks provided an estimate in the sum of £20,961.  The offer was accepted and St Helier Ironworks were appointed to carry out the works.  They contacted a UK based metal fencing and gate manufacturer and those UK manufacturers provided St Helier Ironworks with a choice of six different options for the gates.  It was clear from the options that three of them were to be preferred as they "allow opening to 180 degrees and eliminate finger traps".  For reasons best known to the Managing Director of St Helier Ironworks he did not select one of the safer options but selected another option.  He said in an interview he must have overlooked the warning in the order form.

5.        Construction of the pitch, fencing and gates commenced in July 2016 and was completed in early September 2016.  There is no evidence that the SEB or anyone acting on its behalf carried out a safety check of the new installation.  There was certainly no check on the evidence available to us of the gates having been inspected to ensure that they were suitable for a school and did not contain any finger traps. 

6.        Anyone who is a parent knows that doors and gates frequently present a risk to the fingers of young children.  Indeed the Education Department were also aware of this and in March of 2018 an officer who was the Head of Facilities and Management sent an email to all head teachers expressing concern about five recent finger injuries in schools and he said inter alia "There is a significant amount of guidance produced by various local authorities in the UK to mitigate the frequency and severity of young (primary/reception) pupils being injured by the opening/closing of doors".  He recommended that each primary school undertake a brief review of all the internal doors currently installed.  This specifically required checking for a risk of finger entrapment.  For some reason that guidance did not extend to external doors or doors in or out of playgrounds or sports fields.  We are not sure why this was.  Under the title "Risk Control Measures" it was suggested that all head teachers should raise the awareness of staff to be vigilant and give regular briefings to pupils on the dangers of finger trapping or nipping and fit safety devices on doors that pose a risk.  He added "The risks of finger traps should be considered when replacing or refurbishing doors."  None of this happened in relation to the new gates permitting access to the Astroturf at Grouville School. 

7.        Although there is no specific relevant guidance issued in subordinate legislation under the Health and Safety at Work (Jersey) Law 1989 there is plenty of relevant industry standard and guidance.  In particular the Royal Society for the Prevention of Accidents guidance in respect of Gates and Access to Wheeled Sports Area says that gates, particularly in primary schools must be designed and installed so that foreseeable significant hazards including finger and hand traps are eliminated. 

8.        On 29^th November, 2018, so two years after the new gates were installed, during the lunch break when the pupils at Grouville School were playing outside, including playing on the playground and on the Astroturf pitch, a 7 year old pupil was injured.  Pupils were permitted to go between the playground and the pitch and were instructed to close the gate permitting access to the Astroturf pitch.  A 7 year old boy was standing on the low wall immediately next to the closed gate on the Astroturf pitch talking to a friend and looking in the direction of the playground as he stood on the low wall.  He was holding onto the fence with his right hand and his left hand was holding onto the gate.  Whilst he was talking to his friend, his friend opened the gate trapping the boy's left ring finger fracturing it and severing the tip.  The boy was taken to the Accident and Emergency Department and although the severed tip was found and retrieved it could not be reattached.  We will come back to the injury later in this judgment. 

9.        The accident was reported to the Health and Safety Inspectorate.  The gate that had caused injury to the boy was removed from its hinges to prevent any further injury.  The Health and Safety Inspector noted that the gate opened into the playground away from the pitch and that the gate as hung was prevented from opening fully as the central mounting position of the hinges resulted in the edge of the gate hitting the gate post once it had opened to 110 degrees thereby preventing any further movement. 

10.      The Health and Safety Inspector said that the design of the gate and the position of the hinges created a foreseeable finger trap hazard.  The Crown have described this as an accident waiting to happen.  We agree, and it has not be suggested by the defence that that categorisation or description of this risk is incorrect. 

11.      The gate was thereafter modified to move the hinges to the front.  This was not a difficult task and it ensured that there was a gap between the gate and the gate post through 180 degrees thus removing the potential hazard.  The Health and Safety Inspector noted that the identical gate which separated the Astroturf from an adjourning field still had the same hinges with the same hazard and that remained the case until January 2019.  That second gate has now been modified and also made safe. 

12.      In interview the Director General for CYPES acknowledge that the SEB was responsible for ensuring that children who attended Grouville School needed to be guarded against risk to their health and safety.  The Director General was not sure precisely what lessons had been learned from previous prosecutions of the SEB for health and safety offences but felt there had been a significantly heightened emphasis on risk.  We were provided with a statement in our paper from the same officer who provided the email in March 2018 that was sent to schools, namely the individual who fulfils the role of Head of Facilities Management and Compliance on behalf of the Education Department and thus the SEB.  In his statement he said that after the accident he took various steps aimed at heightening the awareness within schools and education facilities of finger entrapment.  In December 2018 he sent an email to all head teachers, key stakeholders and service leads for schools collages and the youth service and that email specifically mentioned a full check of all external gates and asked that each recipient check that there is a current risk assessment for all internal and external doors gates and their usage.  He also went on to say that since the accident his department had made various adaptations to their policies and procedures aimed at generally improving our compliance checks across the sites for which we are responsible.  He developed and implemented a generic risk assessment for finger entrapment that was circulated in January 2019.  He went on to say further

"both gate and door checks now form part of the school's professional walks and "compliance inspections" which take place with the head teacher and site team every time that an audit or inspection is conducted.  There is also now a specific process that has been implemented whereby all new external 3G pitch installations that are fitted will be inspected by my department and Jersey Property Holdings.  There must be a joint "sign off" of the relevant installation as being fully compliant with all health and safety requirements." 

13.      It is plain from his statement that there were a number of improvements that had to be made throughout the Education Department at the behest of a senior officer namely him to ensure non-repetition of this sort of accident and we reject the assertion made by defence counsel that the responsibility for this accident can be laid exclusively at the door of the head teacher of Grouville School.  We regard that attribution of blame as being incorrect.  Furthermore he went on to say that now "primary schools internal doors are fitted with a two stage door closing mechanism, which is designed to slow down in stages as the door closes."  And also he said "following the accident and the reviews that have taken place, anti-finger trapping and guard devices have been fitted." 

14.      We now return to the injury.  We have seen photographs of the child in hospital and his damaged finger as it was and as it is today.  We have also read a moving statement from his mother, much of which we are not going to read out in Court as we are conscious of the need not to upset the boy and his family further.  She describes the experience of seeing her son in hospital and the extent of his injury as extremely upsetting.  Her son required morphine owing to the extreme pain that he was in.  Subsequently attending hospital for the changing of dressings was extremely distressing and very painful for various reasons which we do not propose to set out.  It was only later that an X-ray revealed the fracture to the finger and an operation was necessary to prevent permanent damage to the boy's finger.  This occurred in December 2018.  This experience was also described as very distressing by the mother in her statement.  The family needed to attend hospital regularly and for a long time the boy was unable to undertake any sports.  The tip of his finger is misshapen and he still suffers with tingling and discomfort in hole of his finger. 

15.      As the Royal Court said in the case of AG v Petroleum Distributers [2018] JRC 190

"19.    ...

"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""

We pause to say for these purposes a school and school children are no different from a work place.

""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."

20.            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.""

16.      In respect of the position of the SEB we note the decision of the Royal Court in AG v States Employment Board [2010] JRC 205 where Commissioner Clyde-Smith giving the judgment of the Royal Court said at paragraph 6

"However, as made clear in Howe, there is no tariff and the circumstances of these cases are different.  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 members of the public who might be affected.  A fine needs to be large enough to bring home the message and in this case the States Employment Board has clearly got considerable resources."

17.      We have regard to the principles set out in R v F. Howe and Son (Engineers) Ltd [1999] 2 Cr App R (S) 37. 

(i)        How far short of the appropriate standard did the defendant fall? 

The SEB failed to adequately oversee the process for the installation of these gates.  It is correct that St Helier Ironworks choose the gates but they were hazardous and this should have been picked up.  There appears to have been little or no oversight and no inspection in the weeks between installation and the accident.  The fact that procedures have now changed so radically indicates in the Court's view how far below the appropriate standard the SEB fell.  The costs of rectifying these installed gates would have been low. 

(ii)       The failure to heed warnings. 

The SEB and all schools were aware of finger trapping as a serious issue.  There had been five previous recent incidents and everyone knows that badly designed doors present a danger to children.  This was not a hidden or obscured defect, it was a defect that on reasonable examination would have been obvious to all. 

(iii)      Profiting from failure or running risk to save money. 

Plainly there is not suggestion of that in this case.

(iv)      Prompt admission of responsibility. 

The SEB has pleaded guilty and cooperated fully with the Health and Safety Inspectorate. 

(v)       Steps taken to remedy the defects. 

The gates were removed immediately and the design altered to eliminate the risk of finger trapping, but again this rather illustrates how easy it would have been to prevent this accident in the first place.

(vi)      Good safety record. 

The SEB does have previous convictions recorded against it although the last case involving an injury to a pupil was in 2014, and we accept the point made by defence counsel that the SEB has a variety of departments carrying out many functions and it would be wrong to look at the previous offences committed by the SEB cumulatively. 

18.      When considering the culpability of the SEB for this accident it can be observed that prior to this incident the SEB had knowledge of the risk and it had been highlighted in the way described in an email to all schools in March 2018 which itself, as we have seen, was wanting in certain respects.  It is true that the SEB relied on an experienced independent contractor to supply what we are sure would have wanted to be safe gates but there was no safety check of the installation on the evidence available to us.  The risk was not appreciated until a child had been significantly injured. 

19.      As this was an accident in effect waiting to happen we regard the culpability of the SEB for this accident, having regard to the factors set out above, as high.

20.      It has been suggested that the fact that St Helier Ironworks were not prosecuted should mitigate the sentence of the SEB.  We do not agree.  The SEB is not being prosecuted for the design and installation of these gates.  The Attorney General decided not to prosecute St Helier Ironworks, we are told, because the prosecution test was not met and we simply cannot go behind that.  The SEB is being prosecuted exclusively for its own failings and being sentenced as such.

21.      We have considered culpability and we now turn to the harm that was risked in this case.  In our view there as high risk of reasonably serious harm and we have taken that into account when determining what sentence to impose.

22.      The Court gives credit to the defendant for its plea of guilty but nonetheless the Court views the sentence moved for by the Crown as being significantly too low. 

23.      The sentence imposed is a fine of £50,000 and a £5,000 contribution of costs of the prosecution. 

Authorities

Health and Safety at Work (Jersey) Law 1989. 

AG v Petroleum Distributors [2018] JRC 190. 

AG v SEB [2010] JRC 205. 

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

AG v States Employment Board [2014] JRC 139. 

AG v States Employment Board [2010] JLR Note 47. 

AG v Coastline PVCu Products Limited and States Employment Board [2009] JRC 152. 

AG v States Employment Board [2010] JRC 181. 

AG v States Employment Board [2010] JRC 205. 

AG v States Employment Board [2014] JRC 139

AG v States Employment Board [2017] JRC 132