Jersey Unreported Judgments

Inferior Number Sentencing - health and safety

[2021]JRC239

Royal Court

(Samedi)

24 September 2021

Before     :

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

The Attorney General

-v-

Timothy Bidmead

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

2 counts of:

Contravention of Article 21(1)(b) of the Health and Safety at Work (Jersey) Law 1989, as amended (Charge 1 and Charge 2).

Age:  60.

Plea: Admitted. 

Details of Offence:

Timothy Bidmead was the Managing Director and sole shareholder of the T Bidmead Construction Limited ("the Company").  On 23^rd November 2020 the Health and Safety Inspectorate received a telephone call from a concerned member of the public.  The call related to a residential property: 23 Duhamel Place in St Helier.  Work was being undertaken by the Company to repair the roof which was leaking.  The area of focus for the project was around the chimney stack and the dormer windows. 

 

Health and Safety Inspector Michael Cayless ("Mr Cayless") immediately attended the property to assess the situation.  He noted that a tower scaffold had been erected to allow access to the roof of the property.  In his opinion the tower scaffold was unsafe and did not prevent employees from falling to the ground when using it.  The near side of the scaffold tower had a ladder affixed to the outside of the unit.  Any person using this ladder would be climbing up the outside of the structure; this is because the top working platform would prevent progress up the ladder from inside the platform.  This would expose a worker to the risk of falling the full height of the scaffold.  In addition to the danger of falling, the balance of the unit is adversely affected by the weight of the person being outside the structure.  This would increase the risk of the scaffold toppling over.  When the person reached the top of this ladder, they would be required to climb over the guard rail at the top of the scaffold.  This also increased the risk of falling.  There was no edge protection on the platforms.

 

Mr Cayless noted that an employee of the company was on the roof.  He became immediately aware that the edge protection that had been constructed on the roof was entirely inappropriate in that it did not provide any protection to prevent a person falling to the ground. 

 

Mr Cayless served two prohibition notices upon the company to prevent them from using the tower scaffold unit and also from working on the roof of the property.

 

After the intervention of the Health and Safety Inspectorate, an independent company was contracted to fit an appropriate scaffold system to the property.

 

The Company had a poor safety record, with seven prohibition notices having been served on the Company since 2017.  Three of these were for similar issues regarding working at height, the most recent being in January 2020.  The Defendant was Managing Director and sole shareholder throughout this period.

Details of Mitigation:

Co-operative with Health and Safety Inspectorate investigation and admitted the infraction at the earliest opportunity.

Previous Convictions:

The defendant appeared in the Magistrate's Court in February 2011 in relation to a workplace accident.  He was fined £500 for a breach of Art 21(1)(b) of the Health and Safety at Work (Jersey) Law 1989. This was at a time when he was trading under the same name as Company as a registered business name. 

Conclusions:

Charge 1:	£40,000 fine.
Charge 2:	£40,000 fine.

Total:  £80,000 fine.  

The Crown seek a contribution to prosecution costs in the sum of £5,000. 

Sentence and Observations of Court:

Charge 1:	£20,000 fine
Charge 2:	£20,000 fine

Total:  £40,000 fine to be paid at a rate of £2,000 per month.

Contribution to prosecution costs ordered in the sum of £5,000. 

Ms L. B. Hallam, Crown Advocate.

Advocate E. L. Burns for the Defendants.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Timothy Bidmead you fall to be sentenced for serious breaches of health and safety regulations intended to safeguard the health and welfare of the employees of T Bidmead Building Contractors Ltd of which you were, at the time of the offences, the managing director and sole shareholder.

2.        In November 2020 the Health and Safety Inspectorate received a telephone call from a concerned member of the public relating to a residential property in St Helier where work was being undertaken by your company to repair a leaky roof.  The tower scaffold erected at your direction by your employees was unsafe and did not prevent employees from falling to the ground when using it.  Not only was the tower scaffold unsafe but the roof was insufficiently guarded to prevent any employees of yours from falling.  What edge protection there was, was wholly inadequate.  The Health and Safety Inspectorate immediately served notices stopping the work and it is noteworthy that one of your staff was on the roof at the time the Health and Safety Inspectorate attended.  It was a wet day and he was working in an area of the roof that did not have adequate edge protection. 

3.        We have seen a photograph of the scaffold tower and today we have heard evidence from Mr Cayless of the Health and Safety Inspectorate who attended the premises in question that day.  The scaffold tower was unsafe in several respects.  The ladder was fixed to the outside of the scaffold unit in a single run that was wholly unsafe, and indeed one of your staff was seen climbing on the outside of the tower in a way which could have resulted in the tower toppling over.  Any employee climbing the scaffold tower was exposed to the risk of falling the full height of the scaffold which was in effect the top of a high two storey building of some 8 metres.  The ladder was not proximate to the platforms on each level within the tower and the platforms themselves were unguarded.  Scaffold towers should be constructed so as to allow workers to climb the ladder within the tower accessing platforms through trap doors and constructed so as to prevent any fall exceeding the distance between the two platforms within the tower.  As to the edge protection, which is designed to prevent a fall of a member of your staff from the roof, there was either no such protection at all or the protection that was, was limited in extent and inadequate.  Indeed the 6 metre roof line, upon which your employees were required to work was only protected at all as to 2.4 metres. 

4.        Three of your employees made statements.  They confirmed that they were not aware of any risk assessment and one of them said I did say to my boss that it was not very safe, but he said go and have a look and try to fix the slates.  So, you were on notice that this was a dangerous structure and one of your staff had complained.  In interview you admitted that the edge protection was inadequate, and you left it to the employees not to go beyond the limits of the width of the scaffold tower when they were on the roof.  That was inadequate advice in our view. 

5.        You have since sold the company and accordingly it is you and not the company that has admitted this offence and we give you credit for your guilty plea.  Although the company has no convictions recorded against it, you were fined in 2011 yourself for a breach of the Health and Safety legislation.  Furthermore, your company received 7 prohibition notices excluding this case since 2017 and three of those were issued for concerns arising from the legislation relating to working at height.  The most recent being in January of last year when a worker was observed standing on a Dorma window on a pitched roof where no measures had been taken to prevent a fall. 

6.        We agree with the Crown, and it has not being challenged, that your culpability is high, that you failed to put in place recognised safety measures and the failure to do so is a serious failure.  As managing director, you were solely responsible for the safety of your employees and you were personally involved in this inadequate scaffolding.  The risk of harm was substantial as anyone falling from the roof or the ladder referred to may have suffered serious injury or death.

7.        We have taken into account the evidence we have seen as to means.  We remind ourselves of the principles contained in the case law referred to us by the Crown and the Court has previously in addition noted the Sentencing Council Guidelines' statement of principle to the following effect:

"The fine should meet the objectives of punishment, the reduction of offending through deterrent, and removal of gain derived through commission of the offence.  The fine must be sufficiently substantial to have a real economic impact which will bring home to management and shareholders the need to achieve a safe environment for workers and members of the public affected by their activities."

8.        Having regard to your means, and for that reason, we reduce the Crown's conclusions and in relation to the first charge the fine will be £20,000, the second charge £20,000 making a total of £40,000, and £5,000 by way of contribution towards the prosecution costs,  The fine to be payable at a rate of £2,000 per month. 

Authorities

Health and Safety at Work (Jersey) Law 1989

AG v States Employment Board [2020] JRC 259

AG v Brown [2020] JRC 029A

AG v Sonnic Ltd and Mendonca [2019] JRC 120

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

AG v Horgan and Unit 6 Joinery Limited [2018] JRC 040

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

English Sentencing Guidelines