Jersey Unreported Judgments

Health and Safety.

[2021]JRC114

Royal Court

(Samedi)

16 April 2021

Before     :

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

The Attorney General

-v-

GMK Construction Limited

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)(b) of the Health and Safety at Work (Jersey) Law, 1989, as amended, in that, being a relevant contractor, you contravened Regulation 21(3) of the Health and Safety (Management in Construction) (Jersey) Regulations 2016.  (Count 1)

 

Particulars of Failure

Failure to ensure that an electrical service had been disconnected or otherwise isolated

 

Plea: Guilty.

Details of Offence:

GMK Construction Limited was contracted to replace a shopfront at a commercial premises in Halkett Street. 

 

They had identified that a live 415 electrical cable ran underground from the road beneath the shop window and into the premises.  They were also aware, following an earlier meeting with Jersey Electricity Company ("JEC"), that they had to locate the cable with hand tools and then apply for the service to be disconnected prior to undertaking any further work. 

 

On 7^th May 2020 a self-employed steel fixer was contracted to fit a spreader beam in the trench around the cable.  The service had not been disconnected when he was undertaking his job in close proximity to the cable.

 

An employee of Jersey Electricity Company passed the site and was aware that the service was still connected.  He returned to the site and stopped work from continuing until Jersey Electricity Company had made the service safe. 

The cable was insulated with paper which meant that there was a risk of the insulation cracking when the cable was moved.  There was a risk of electric shock, electric burn or fatality to people on the site. 

 

Details of Mitigation:

Infraction admitted at earliest possible opportunity, co-operation provided during the investigation.  Small company with limited ability to afford fine moved for by the Crown.

Previous Convictions:

There are no previous breaches of Health and Safety legislation recorded against GMK Construction Limited. 

 

Conclusions:

£60,000 fine.

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

Total:  £65,000.

Sentence and Observations of Court:

£30,000 fine to be paid at £2,000 per month.

Application for prosecution costs granted in the sum of £5,000, to be paid after the fine has been paid in full, at the rate of £2,000 per month. 

Total:  £35,000.

HM Attorney General for the Crown

Advocate S. Walchope for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        GMK Construction Limited ("the Company") appears today to be sentenced for exposing persons, including an independent contractor of the Company, to the danger of electrocution or, as the particulars of the offence put it, "danger of electric shock, burns or electrocution".

2.        The Company was replacing a shop front in Halkett Place in April last year.  On the 22^nd April 2020 there was a meeting between the managing director of the company and an engineer working for the Jersey Electricity Company ("JEC").  The Company was aware of the fact that it was going to be working around a live mains electricity cable. 

3.        The cable ran from the road directly beneath the shop window into an associated three phase cut out and meter within the premises.  The representative of the JEC told the company's managing director that excavation could only take place with hand tools, in order to ascertain the precise position of the cable.  Thereafter the JEC would disconnect or move the cable. 

4.        We have to hand the Health and Safety report and we have heard evidence from Mr De La Haye of the Health and Safety inspectorate.  His report says at paragraph 1.3 that the managing director was told by the JEC representative that due to the presence of the electricity cable and the excavations in the area would need to be undertaken with hand tools only, solely as a means of identifying the true position of the cable, prior to any other works taking place.  The managing director was advised to engage with an engineer who could assist in the completion of relevant forms to arrange for the supply to made safe prior to demolition work. 

5.        Construction began on the 27^th April 2020, and during the course of the works in the shop a rotten board collapsed resulting in live electrical equipment falling to the floor, and, when asked during caution interview why it was simply left there whilst work on the site continued, the managing director said "it came off and we didn't want to touch it".  In the evidence Mr De La Haye said that the supply should have been disabled before any demolition work occurred. 

6.        In the event the Company did excavate the area containing the cable with hand tools but, having identified and excavated the cable, there was no contact with the JEC to have it made safe.  It is said that this was a consequence of confusion on the part of the managing director as to what the JEC have said, or that perhaps the JEC had not even given the advice the JEC have said in writing that they gave.  Certainly, in future it would be helpful if the JEC, if at all possible, gave such advice in writing either by email, text or letter whatever is most convenient so there could be no dispute about this advice in any subsequent proceedings. 

7.        In the event, about two weeks later on the 6^th May 2020 the managing director of the company contacted Mr Workman, a self-employed steel fixer and asked him to construct a steel reinforcing beam in the pavement, just outside the shop premises concerned, and this was work that was to be done on the 7^th May 2020. 

8.        Mr Workman arrived on site the following day and could see the exposed electrical cable in the excavation in front of him.  The managing director of the company told Mr Workman to go ahead with the work and Mr Workman understood that was on the basis that the cable was no longer live.  In fact, it was, and the cable was old cable (paper insulated) and there was a risk of the paper insulation cracking.  We have seen photographs of what Mr Workman did and not only did he need to touch the live cable, (although he thought it was not live) in order to do those works, he also needed to install various pieces of metal work in and around the cable which itself was dangerous in view of the risks. 

9.        By chance the representative of the JEC who had given the advice before happened to drive by the site.  He saw that work had begun, he knew that an application to make the cable safe had not been made.  He saw the cables lying on the floor with steel above it increasing the risk of damage to the cable and injury to third parties.  He immediately attended the site, stopped the work and another representative of the JEC attended to make the cable safe. 

10.      So, in this case the company failed to make the appropriate application to the JEC and failed to comply with the relevant Health and Safety guidelines which we have been shown today.  The relevant Health and Safety Inspectorate Guidance says in its preface that electricity can kill or severely injure people and cause damage to property. 

11.      We give the company credit for its guilty plea and absence of similar previous offences.  We have considered the English sentencing guidelines in relation to the culpability and harm factors present in this case, and we agree with the Crown's assessment that the culpability of the company in this case is high.  It failed to comply with standard industry guidance, advice given to the JEC just before the work commenced and, in our view, with common sense in relation to the risk posed by this cable.  As to the seriousness of the harm risked, it can properly be described as a low to medium risk of death or physical injury.  

12.      As the Court has previously said, the fine imposed on a company in these circumstances should "sting".  Although we do not adopt the English Sentencing Council Guidelines in terms of the quantum of financial penalty to be imposed for offences we do note the following statement of principle which we regard as representative of the relevant approach in Jersey as well as England, namely that "the level of fine should reflect the extent to which the offender fell below the required standard.  The fine should meet, in a fair and proportionate way, the objectives of punishment, deterrent and the removal of gain derived through the commission of the offence, it should not be cheaper to offend than to take the appropriate precautions." 

The fine "must be sufficiently substantial to have a real economic impact to which will bring home to both management and shareholders the need to comply with Health and Safety legislation".  We regard that approach as being a consistent evolution of the approach in R v F Howe and Son (Engineers) Limited [1998] EWCA Crim 3531 where the Court of Appeal said the following:

"The objective of prosecutions for health and safety offences in the workplace is to achieve a safe environment for those that 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 that manage it but also to its shareholders."

13.      The Crown in this case moved for a fine of £60,000.  We regard that as a wholly appropriate penalty to impose in this case, but for the consideration of the company's means.  

14.      We have been furnished only today with full particulars of the Company's financial position.  Normally the Company has a turnover of about half a million pounds a year and in recent years has made a profit of between £55,000 and £73,000, but during years, the last financial year the Company recorded a small loss. 

15.      In those circumstances, and having regard to the Company's means, we impose a fine of £30,000 to be paid at £2,000 per month and order the Company to pay the prosecution costs of £5,000. 

16.      The costs are to be paid after the fine has been paid in full, at the rate of £2,000 a month.

Authorities

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

Health and Safety (Management in Construction) (Jersey) Regulations 2016

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

AG v Petroleum Distribution (Jersey) Limited [2018] JRC190

AG v Jubilee Scaffolding Limited [2019] JRC077

R v F Howe and Son (Engineers) Limited [1998] EWCA Crim 3531