Jersey Unreported Judgments

Inferior Number Sentencing - Health and Safety Infraction.

[2021]JRC080

Royal Court

(Samedi)

19 March 2021

Before     :

R. J. MacRae, Esq., Deputy Bailiff, and Jurats Pitman and Austin-Vautier

The Attorney General

-v-

JP Mauger Limited

Crown Advocate L. B. Hallam.

Advocate A. M. Harrison for the Defendant Company.

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

1 count of:

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

Plea: Guilty

Details of Offence:

The Company, being an employer, failed to discharge their duty under Article 3(1) of the said Law, to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all of employees.  Employees used a trestle to work at a height of approximately 1.5 m.  The trestle was unstable and lacked proper toe rails and guardrails.  Access was via an unsecured and unstable step ladder.  One employee slipped whilst on the trestle, another man went to help him, and the trestle toppled over.  Both men fell to the concrete floor, one of them suffering head injuries and broken ribs requiring hospitalisation. 

 

The trestle has been constructed for a different purpose, and the employees were not instructed to use it for this purpose.  However, a lack of supervision resulted in a situation that presented a high risk of harm to employees from falling.

Details of Mitigation:

Submitted that this was a low culpability case.  Deeply regretted incident.  Has put in place additional policies to prevent a similar incident from happening again.  Cooperative with Health and Safety Inspectorate and admitted infraction on first appearance.  

Previous Convictions:

None.

Conclusions:

Count 1:

£25,000 fine.

Prosecution costs order sought in the sum of £5,000.

Total:  £30,000.  

Sentence and observations of Court:

Conclusions granted.  

Fine and prosecution costs to be paid within 7 days of today. 

JUDGMENT

THE DEPUTY BAILIFF:

1.        On the 27^th January 2020, two employees of the company JP Mauger Limited were installing timber joists at a domestic property in St Martin.  They needed to use a platform in order to do so.  This platform was poorly constructed and did not conform to the standards required to provide a sufficient degree of safety to employees.  There was no guard rail in place and the ladder used to access the working platform was not attached to it.

2.        The site supervisor was absent at the time of the accident and the Company has pleaded guilty to an offence under Article 21 of the Health and Safety at Work (Jersey) Law 1989, on the footing that it failed to ensure the health, safety and welfare at work of its employees by allowing construction work to take place, by providing access to the work area using a work platform that was in an unsafe condition thereby exposing two staff to injury, resulting in injury in particular to Mr O'Berg which we will come to in a moment. 

3.        We were assisted by a report from the Health and Safety Inspectorate in relation to the incident, provided to us today which says that a work platform can be built using trestle stands with scaffolding planks being used to form the work platform.  There are proprietary systems of guard rails available that should be fitted to a work platform to prevent workers falling from the platform.  Access can be gained using step ladders or ladders, but these should be fixed in place for stability. 

4.        Access onto the work platform should be through a properly constructed entry point protected by a gateway.  The author of the report goes on to provide an example of a platform built to industry recognised standards including bottom and top guard rails, two toe boards and a safe gated access to the platform and a ladder securely attached.  

5.        We heard in evidence today from Mr Cayless of the Health and Safety Inspectorate, who told us that the access to the platform in this case was not suitable, was not sufficient nor was it safe, and that persons stepping off the platform were exposed to risk.  He said that the absence of a top guard rail was particularly significant as only having a bottom guard rail in place made the platform more dangerous because it creates a serious tripping hazard.  He said that all edges needed suitable and sufficient guarding especially at either end of the platform and in this case, as we can see from the photographs of the reconstructed platform, one of the ends was entirely unguarded.  He also said that the open doorway at the other side of the platform, not the side which had the ladder against it, should have been suitably guarded and was not.  

6.        Had these means been adopted then it would have led to a safe working environment and the accident would not have occurred.  This trestle did not comply with the relevant legislation.  In particular, on the facts of this case, the toe board permitted Mr Gosselin, on the day in question to stretch out to reach a piece of work.  Once he had lost his balance and gone over Mr O'Berg dashed across in order to stop him falling and the whole platform fell over as a consequence of the fact that, in addition to the various defects we found, the platform itself was not properly erected in the sense that there was no outriggers attached to the legs so as to provide it with proper additional stability.

7.        In their statements, Mr O'Berg and Mr Gosselin, the two workers, said that they do not know who built the trestle scaffold at the property but they used it because it was already in place when they went to start their work.  Both men described the table in their witness statements, identifying it as a table with the toe board in place but no guard rail; access being gained using a free-standing pair of step ladders.

8.        Both men describe, as work continued, the scaffold trestle suddenly collapsing whilst both men were working upon it. They fell to the concrete floor a distance of 1.5 metres ending up entangled with the scaffold components. 

Mr Gosselin said:

9.         "We were working away, I was a bit too close to the edge to start with, my foot slipped off the side of the scaffold board.  I grabbed hold of the steel above my head to stop me falling, at this time Steve O'Berg jumped across a scaffold to stop me falling.  I was trying to push myself back.  We lost our footing and the trestle started to topple and landed sideways."  

10.      Mr O'Berg gave a similar account.  He suffered significant injuries to his head and fractured, six or seven ribs fractured.  He was in hospital for a week.  Three months later he had an accumulation of fluid to his lungs, left with a pain at the site of the injury, discomfort on breathing.  He is now back at work full time, after spending some time off work and some time when he was unable to do only light duties.  

11.      This was a serious incident caused by, in our view, a very unsafe system of work.  We agree that the culpability of the Company is high by reason of a failure to prevent this accident and permitting this system of work to be operated at a time when the site was unsupervised.  The lack of supervision is of concern.  The platform was inadequate and the means of accessing the platform was also unsafe. 

12.      We give credit to the Company for its guilty plea.  We accept the basis of plea.  The basis on which the plea was tendered which is that there was no anticipation on the part of the Company that these two workers would do this work on the day in question, but it is accepted that this scaffold had already been erected in the room in which the work was carried out.  

13.      We note that the Company has revised its policies and substantially improved the working practices in relation to scaffolding.  Scaffolding now can only be used if it has a "scafftag" attached to it, indicating that it that it has been inspected.  Without the same it cannot be used in any circumstances.  Employers cannot work at height at all unless they have the appropriate card and there has been more training for all staff.  We are pleased to note those changes. 

14.      But, as we have said, we have agreed with the Crown that the culpability for this accident on the part of the company was high and there was a significant risk of harm, demonstrated by the harm Mr O'Berg suffered when he fell in the circumstances that we have considered.  

15.      We have considered the previous authorities drawn to our attention.  As to the approach set out in R v F Howe and Sons (Engineers) Limited [1999] 2 Cr. App.R(S) 37, we note in AG v Petroleum Distribution(Jersey) Limited [2018] JRC 190 at paragraph 19 the reference to the position of the Court of Appeal in R v F Howe and Sons, where the Court said:

"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."

The next paragraph, the Royal Court went on to say:

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.      As to whether or not the fine will "sting" in this case we are unable to tell, because the Company has declined to provide us its accounts on the footing that it could meet any fine that the court might reasonably incur and pay the fine within seven days. 

17.      In the circumstances we have no hesitation in granting the Crown's conclusions. 

18.      The fine we impose is one of £25,000 with the sum on account of costs that is sought by the Crown in their conclusions namely, £5,000.  We direct that sum be paid within seven days of today.

Authorities

Health and Safety at Work (Jersey) Law 1989

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

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

AG v RJ Le Sueur Limited [2019] JRC070.

AG v Fosse Construction Limited & Moy Construction Limited [2019] JRC104. 

Extract from Sentencing Council Health and Safety Offences, Corporate Manslaughter and Food Hygiene Offences Definitive Guideline  .