Jersey Unreported Judgments

Inferior Number Sentencing - health and safety

[2021]JRC217

Royal Court

(Samedi)

20 August 2021

Before     :

A. J. Olsen, Esq., Lieutenant Bailiff, and Jurats Thomas and Christensen

The Attorney General

-v-

Camerons Limited

DB Cummins Limited

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

Camerons Limited

1 charge of:

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

Plea: Admitted. 

Details of Offence:

Camerons is a large local construction company and was the principal contractor for a redevelopment project at 78 to 92 Bath Street, St Helier.  The matter concerns the demolition of 82 Bath Street ("the Site").  DB Cummins is a large local specialist demolition contractor and was sub-contracted by Camerons to undertake the demolition of the building on the Site.

 

On 3^rd July 2021, following e-mail correspondence between the defendant companies, Camerons contacted the Jersey Electricity Company ("JEC") to request that they attend and remove a streetlight, bracket and electricity cabling ("the Cable") to pavement level at the Site to enable the next phase of the demolition.

 

On 7^th July JEC attended at the Site to carry out the work.  However, due to the proximity of scaffolding erected on the façade of the building on the Site, they could not gain access to the area that they needed to excavate to disconnect the Cable.  They were only able to remove the streetlight, its bracket and the Cable as far as the junction box, which was halfway up the wall.  JEC informed Camerons that the Cable below the junction box was still live and remained attached to the Site and could not be disconnected until the scaffolding was removed.

 

On 7^th July Camerons advised DB Cummins, via an email exchange, that the lamp had been removed.  They informed DB Cummins that the live Cable was still attached to the Site and to proceed with caution and that the Cable would be isolated on Friday 10^th July.  The Cable was not disconnected by JEC on the Friday or prior to the demolition works at the Site and a disconnection certificate was not issued.  An electrical disconnection certificate had been issued for the Site.

 

On 28^th July Pierce Cummins of DB Cummins was informed, verbally, by Richard Kalvis of Camerons that the Cable was still in situ and live.  Despite stating in the prepared statement read at the company's interview that he was aware that he needed to tell his demolition employees not to commence work on the site, Mr Cummins left the Site without ensuring this was done.

 

On 29^th July DB Cummins employees commenced demolition of the Site in accordance with prior instructions.  Its employees were not informed about the Cable by either Pierce Cummins or Camerons.

 

The Site was demolished by machine.  This was contrary to the method statement agreed prior to the commencement of works between Camerons and DB Cummins which stated that machinery would not be used for the demolition of the façade.  During the demolition the live cable, that had remained on the façade attached to the junction box, was severed below ground.  This had not been realised until Richard Kalvis, the Project Manager for Camerons, inspected the Site and saw a severed cable amongst the rubble with the other side still attached to the junction box.  Realising the potential danger, the Site was shut down and JEC was contacted to make it safe.  Mr Cummins was contacted and attended at the Site.

 

The JEC engineer who attended saw there was a severed cable coming from the ground amongst the debris, but he could not be sure if this was the Cable that had supplied the streetlight (it subsequently transpired it was not).  As the scaffolding was still in situ, JEC had to cut off the power supply to that grid area of town to allow Geomarine to safely excavate the pavement and locate the live Cable, which left a number of local businesses and residents without any electricity for several hours.

 

The other end of the severed, live cable was located underground and made safe.

Details of Mitigation:

Camerons and DB Cummins

 

Co-operative with Health and Safety Inspectorate investigation and admitted the infraction at the earliest opportunity. Not a case involving deliberate cutting of corners to maximise profits and companies took immediate steps to investigate matters themselves and have implemented changes to improve health and safety practices.

Previous Convictions:

2000 conviction for failing to implement safe systems of work - £10,000 fine.

2003 conviction for failing to erect crash barriers of an adequate standard - £5,000 fine.

Conclusions:

Charge 1:

£90,000 fine.

£5,000 contribution towards prosecution costs sought.

Sentence and Observations of Court:

Charge 1:

£55,000 fine.

£5,000 contribution towards prosecution costs ordered.

DB Cummins Limited

1 charge of:

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

Plea: Admitted. 

Details of Offence:

See above.

Details of Mitigation:

See above.

Previous Convictions:

2001 conviction for failing to ensure employees not exposed to risk £7,500 fine.

2007 conviction for failing to ensure employees not exposed to risk and failing to provide a safe system for work at height - £17,500 fine.

Conclusions:

Charge 1:

£90,000 fine.

£5,000 contribution towards prosecution costs sought.

Sentence and Observations of Court:

Charge 1:

£55,000 fine.

£5,000 contribution towards prosecution costs ordered.

C. R. Baglin Esq., Crown Advocate.

Advocate W. Grace for Camerons Limited

Advocate A. M. Harrison for DB Cummins Limited

JUDGMENT

 

THE lieutenant BAILIFF:

1.        This is on any view a serious case.  The JEC engineer who attended the site described the scenario, as he put it, as one of the worst he had ever been involved with.  We take particularly into account that had the cable been severed above ground it could have come into contact with the site hoarding or the scaffolding or both and electrified them.  Mercifully no one was killed or injured, but the risk of injury or death was high in this case.

2.        That having been said, we accept the submissions of defence counsel that the degree of culpability is medium.  The Court accepts that there was no deliberate or flagrant breach of the law, but as the Crown has pointed out, both defendant companies failed over a period of some 18 or 19 days to recognise and avert serious and life-threatening risks The failure on the part of both defendants arose out of the fact that systems were in place, but were not sufficiently adhered to or implemented.  Hence our assessment of the degree of culpability at medium.

3.        Applying the well-established principles set out in R v Howe & Son (Engineers) Ltd [1999] 2 Cr App R (S) 37 the Court finds as follows: firstly, the conduct of Camerons fell significantly short of the appropriate standard and the offending constituted a serious breach of the law.  From 7^th July 2020, Camerons were aware that the JEC had not disconnected the live cable below the junction box.  It failed to inform Cummins until 28^th July that the cable had not yet been disconnected.  As regards Cummins, its conduct fell substantially short of the appropriate standards.  It was informed, as we have said, on 28^th July that the cable was still live, and it knew that staff were about to commence demolition the following day, but did not inform them until after the demolition had taken place on 29^th. 

4.        So, in summary we find both defendants equally culpable in their different ways.  We find that there is no significant element in failure to heed warnings in this case and we find that there is no evidence that either defendant breached the law for financial gain.  There was prompt admission of responsibility on part of both defendants and they both admitted the infractions at the earliest opportunity.  As regards steps taken to remedy the defect, all works were stopped immediately the issue was discovered and the site was made safe.

5.        In relation to the defendants' safety record we note that Camerons has been before the Court on two separate occasions, but we make allowance for the fact that the two convictions were in 2000 and 2003.  Cummins also has two previous convictions in 2001 and 2007.  The most recent convictions were therefore 17 and 13 years respectively before the current offending, and we note that none of the offences in the past related to electricity supply issues.  We take account of the fact that neither defendant company has reoffended since, apart from these incidents.  Construction work is extremely risky, and this is correspondingly to their credit. 

6.        Turning to harm, it is contended by the Crown and accepted by the Court that even though mercifully no one was killed or injured the risk of harm was high. 

7.        We also regard as an aggravating feature that innocent traders on and residents of Bath Street were without electricity for a period of some three and a half hours when the supply to the cable had to be disconnected. 

8.        We have taken note of counsel's submissions in relation to the conduct of both defendants immediately following and since the offending and find that their conduct in each case since the date of the offending has been exemplary.

9.        Additional mitigating factors are that admissions were made early, and the statements made by the respective directors were frank and honest.  We also take account of the very early guilty pleas and we think that those are valuable pleas.

10.      But this remains a very serious case and the risk, as we have said, of harm to the public and to the workers on the site was high.  Balancing all the factors and taking all the circumstances into account the fines in the case of both defendants will be £55,000, and the defendants are ordered to contribute £5,000 each towards the Crown's costs, with one week to pay in both cases.

Authorities

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

Health and Safety at Work (Jersey) Law 1989

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

AG v GMK Construction Limited [2021] JRC 114

AG v Camerons Ltd and GH Ltd 2000/235

AG v Camerons Ltd and H & U Industries Ltd [2003] JRC 227A

AG v DB Cummins (Jersey) Ltd [2001]92

AG v DB Cummins (Jersey) Ltd and DB Cummins [2007] JRC 159

English Sentencing Guidelines