Jersey Unreported Judgments

Inferior Number Sentencing - health and safety - reasons for the sentence imposed.

[2022]JRC050

Royal Court

(Samedi)

25 February 2022

Before     :

R. J. MacRae, Esq., Deputy Bailiff, and Jurats Blampied and Ronge

The Attorney General

-v-

CNR Construction

C. R. Baglin Esq., Crown Advocate.

Advocate C. Hall for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        On 28^th January 2022 we fined the Defendant CNR Construction ("the Defendant") in the sum of £100,000 and ordered the Defendant to pay £5,000 by way of contribution to the prosecution costs.  We now give reasons for our decision. 

The facts

2.        In the course of early 2021, the Defendant was working as part of a team of contractors on the building of 165 flats at Ann Court, Providence Street, St Helier.  The Defendant is a French company, and its head office is in France.  The Defendant was sub-contracted to undertake design, supply and installation of the concrete works. 

3.        In particular, the Defendant was required to install working platforms designed to access areas of the site including areas where workers were required to work at significant heights. 

4.        The need for such working platforms (which are metal structures) was identified by the design drawings for the site.  A technical drawing for each platform was produced prior to construction and fastenings and holes for brackets on particular parts of the concrete structure were in place when the concrete was poured to form the external walls into which the working platforms would in due course be slotted. 

5.        Each working platform was identified by reference to its design and given an identification label.  The platforms and the relevant fixings were designed in France but assembled on site in Jersey. 

6.        The platforms were craned into position and secured by the platform being placed on brackets which were set in the concrete, further secured by an anti-tilt bar in order to prevent the platform failing or tilting to the extent that any person working on the platform would fall. 

7.        The working platforms were designed in accordance with a "method plan" which are the responsibility of the "method department".  The Defendant's Method Department consisted of four people based in France.  It was the task of the members of the method department to contact the manufacturers of the working platforms (a company called Sateco) should any questions about the construction or design arise.  The platforms were required to be assembled on site by the Defendant's Equipment Team. 

8.        In the course of mitigation Advocate Hall said that in France two members of the Equipment team would always check the platforms had been assembled correctly.  In breach of the Defendant's own internal systems, there was only one member present in Jersey and, prior to the incident, that sole member of the Equipment Team was allowed by the Site Manager to leave Jersey permanently for France.  This meant that those employees with responsibility for assembling the working platforms were no longer present on site on 2^nd February 2021.  This was the first of many failings by the Defendant. 

9.        On 2^nd February 2021, employees of the Defendant decided that a platform which had been designed to construct external walls on the fourth floor of the building was too short.  It was decided to change the platform to a longer platform.  The Defendant's site foreman, Clement Leblancq, installed two props beneath the platform to support the platform which was to be placed above.  He placed the props in holes that were designed for a platform of 3.4 metres.  The new platform was placed on the fixing points dedicated for the initial platform and props were put underneath to support the cantilever by using the slab of the underneath balcony.  In fact, the longer platform to be installed extended to 5.85 metres - 65-70% greater than the original design, which resulted in one end of the platform being in effect unsupported by the existing pre-formed fixing points in place for the original, shorter, platform.  This was the second significant failing on the part of the Defendant.  Further, the anti-tilt bar was not checked to see if it had properly locked in place under the two props/brackets. 

10.      Neither Mr Leblancq the site foreman, or Mr Zelijko Kazic the site manager for the Defendant contacted the method department or the Equipment Team about the change of design.  Mr Kazic claimed that this was because he did not have time to do so as the project was running late.  This was the third significant failing on the part of the Defendant.  In interview Mr Kazic accepted that he should not have altered the length of the platform without reference to the need for a new design from the Method Department.   

11.      Advocate Hall, in the course of submissions on behalf of the Defendant, said that there were procedures in place to prevent the incident that was caused by these failings but they were firstly not complied with and, secondly, had not been reduced into writing.  These were the fourth and fifth significant failings. 

12.      Advocate Hall said that if properly installed the anti-tilt bar may have helped steady the platform but may not have prevented the collapse that occurred.   

13.      After the accident Camerons, the principal contractor, carried out an examination of the other working platforms that the Defendant had installed at the site.  Of 34, seven had platform errors that needed to be addressed as they were either not installed within the method plan or were in some other way defective.  The method plan permitted a tolerance of 20 to 30 centimetres in the size of the platform.  We regarded this as a sixth and significant overall failure as evidence of systemic shortcomings on the part of the Defendant, although this specific failure was not directly causative of the incident. 

14.      It was said on behalf of the Defendant that the absence of the project manager from the site did not denote a lack of supervision because the site manager, Mr Kazic was present.  We found this difficult to accept in view of the general shortcomings and the specific failings which led to this incident. 

15.      At 1.30pm on 2^nd February 2021, the platform failed whilst Mr Filipe De Abreu, an employee of another sub-contractor, was undertaking his work.  Mr De Abreu fell 12 metres to the road below.  Fortunately, he was the only person on or below the platform when it failed.  He suffered multiple life changing injuries which will affect him permanently. 

16.      We have set out the particular failures of which the Defendant was guilty and noted that in this case the Equipment Team returned to France before completing the assembly of the working platforms, agreeing that the untrained site manager could carry out their work instead.  This meant that the site-based team was left without either adequate supervision or direct monitoring of their work.  Indeed, it seemed from what we were told by defence counsel in mitigation that those ultimately responsible in the Defendant company for this work were not even aware that the Equipment Team had returned to France, leaving the untrained site manager responsible for this complex, difficult and potentially dangerous project. 

17.      Mr De Abreu's suffered a head injury, six rib fractures, multiple fractures of the right scapula, fractures of the pelvis, elbow and wrist.  He was taken to Southampton and remained in the intensive treatment unit for over a month and underwent five operations, including to his pelvis, elbow and two amputation operations to his left leg.  He was very unstable in the intensive treatment unit and, in addition to his amputation on the left lower limb, his right leg suffered severe nerve injuries to the sciatic nerve, resulting in very limited function to his right lower leg.

18.      He returned to Jersey on 13^th April 2021, exhibiting complete lack of movement around his right ankle and knee, minimum movement around the right hip, stiffness to the right elbow and absence of sensation to the right foot and no active movement at the knee. 

19.      Although there may be some recovery in elbow and wrist function, there is the possibility of death of bone tissue due to loss of blood supply of the right hip and the prognosis for his lumbosacral injuries is not good.  He will continue to have a significant disability.  Mr de Abreu can no longer work, and he says that he feels his body has been "mutilated" and his mental health "destroyed".  His wife has suffered similar damage to her mental health and is now his carer.  He says his family is now jobless and homeless, living off short-term incapacity allowance.

20.      The Defendant fully complied with the investigation and pleaded guilty.

21.      As to Mr Kazic and Mr Leblancq, both were sanctioned.  Mr Kazic was given a warning and sent to a smaller site operated by the Defendant where he continues to be monitored.  We were told that he did not need re-training as he was already "fully trained". 

Financial penalty - principles

22.      The approach to financial penalties for health and safety prosecutions is as follows.  First, there are no sentencing guidelines in such cases.  Each case is different, and the Court receives limited assistance from references to previously decided cases where the facts will invariably be different.  In this case, previous cases involving scaffolding were drawn to our attention.   Second, the starting point in Jersey has traditionally been the decision of the English Court of Appeal in R -v- F Howe and Son (Engineers) Limited [1999] 2 Cr App R (S) 37.  This reference is qualified by certain principles contained in the English Sentencing Guidelines in respect of the factors under which culpability and harm fall to be assessed.  The Court has now for some years had regard to the approach set out in those Guidelines in these respects i.e. culpability of the Defendant and harm risked and the likelihood of such harm.  To some extent the Guidelines have accordingly replaced some of the considerations set out by the Court of Appeal in R -v- F Howe and Son.  However, the Royal Court has elected not to have regard to the English Guidelines in respect of the penalty which ought to be imposed on an offender, save that it has accepted (see, for example, AG -v- Bidmead [2021] JRC 239) the statement of principle 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, deterrents and the removal of gain derived through commission of the offence, it should not be cheaper to offend than to take to the appropriate precautions. 

The fine must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation."   [Emphasis from the Guidelines]

23.      In respect of financial penalties, the Court of Appeal in R -v- F Howe and Son said this at page 7 of the judgment: 

"We are not persuaded that the size of the company and its lack of ability to provide its own specialist safety and electrical personnel mitigates these offences. The means of the company is, on the other hand a very material factor to the amount of the fine. As to the level of fines imposed generally for offences of this nature, it is the view of each member of this court that they are too low and therefore not an appropriate yardstick for determining the level of fine in the present case. We shall say more about these matters in a moment."

24.      At page 9, the Court went on to say: 

"Any fine should reflect not only the gravity of the offence but also the means of the offender, and this applies just as much to corporate defendants as to any other.... Difficulty is sometimes found in obtaining timely and accurate information about a corporate defendant's means. The starting point is its annual accounts. If a defendant company wishes to make any submission to the court about its ability to pay a fine it should supply copies of its accounts and any other financial information on which it intends to rely in good time before the hearing both to the court and to the prosecution. This will give the prosecution the opportunity to assist the court should the court wish it. Usually accounts need to be considered with some care to avoid reaching a superficial and perhaps erroneous conclusion. Where accounts or other financial information are deliberately not supplied the court will be entitled to conclude that the company is in a position to pay any financial penalty it is minded to impose. Where the relevant information is provided late it may be desirable for sentence to be adjourned, if necessary at the defendant's expense, so as to avoid the risk of the court taking what it is told at face value and imposing an inadequate penalty.

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 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."

25.      Accordingly, it is clear that a deliberate decision not to supply the Court with accounts will result in the Court proceeding on the assumption that the company can pay any financial penalty the Court is minded to impose.  There was some suggestion on behalf of the company in this case that in fact a company's accounts were only relevant to mitigation - where a company was arguing that it had insufficient means to pay the fine moved for by the Crown.  That is not the case.  The Court will expect accounts in each and every case supported by an affidavit of means and a deliberate decision not to supply accounts will lead to the conclusion referred to by the Court of Appeal in R -v- F Howe and Son. 

Culpability and harm

26.      Having now considered the proper approach to the imposition of financial penalties we turn to culpability and harm.  It was said on behalf of the Crown that the Defendant's culpability was "medium" as the Defendant had systems in place which were simply not adhered to.  The Crown said that the type of harm risk was in the highest category and the likelihood of harm being caused was high. 

27.      The Defendant argued that in fact the Defendant's culpability was "low" although it was accepted that the level of harm was high. 

28.      The Crown moved for a total fine of £135,000 in respect of the two charges to which the Defendant pleaded guilty.  The defence said the total appropriate fine in the circumstances should be between £50,000 and £60,000. 

Culpability

29.      The Crown identified that this was a case of "medium" culpability on the part of the Defendant as there were "systems in place but these were not sufficiently adhered to or implemented" (the Guidelines). 

30.      We reject the defence assertion that this is a case of "low" culpability where the offender did not fall far short of the appropriate standard and significant efforts were made to address the risks.  We also rejected the assertion that this was a case of "minor" failings.  We think that the Crown would have been entitled to have argued that this was a case of "high" culpability in view of the number of failings to which we have referred.  This was a large company with a good health and safety record, but it was not a one-off failure that led to this accident.  Things went badly wrong owing to a catalogue of errors.  The Equipment Team left Jersey without any proper explanation (the existence of Covid was, in our view, insufficient and certainly does not amount to an excuse); a site manager with insufficient experience and training was left to his own devices; the platform almost twice the length of the one designed was installed without any reference to the method department and the Equipment Team; the platform appears to have been incorrectly assembled; and there were many other platforms on site which bore the hallmarks of a widespread failure to comply with the Defendant's own systems.  We were told that the Defendant has an excellent safety record at their French sites, but not, it appears, in Jersey.  The Defendant appears to have been far less diligent when supervising this overseas operation than they would have been in the case of a domestic one.  Ultimately, we agreed with the Crown's assessment the culpability of the company was medium. 

Harm

31.      The likelihood of harm was high for obvious reasons.  This was dangerous work at height.  The seriousness of harm risked was at the highest level - death, physical or mental impairment resulting in lifelong dependency was risked.  The Defendant was fortunate that only one person was affected.  Further, the Defendant's breach was not merely a significant cause but the sole cause of the actual harm caused to Mr De Abreu. 

Conclusion

32.      This was a serious breach of health and safety legislation leading directly to catastrophic injuries from which Mr De Abreu will never recover. 

33.      We have regard to the cases placed before us but do not think it appropriate or necessary to compare the fines imposed in those cases, although we have stood back from the facts of this case in order to assess whether or not the fine that we decided to impose could be regarded as substantially out of line with the fines imposed in those cases. 

34.      We decided that the appropriate fine in this case was one of £100,000, £50,000 on each count and ordered that the Defendant contribute towards the prosecution costs in the sum of £5,000. 

35.      We were surprised, having regard to the Defendant's decision not to provide the Court with any information as to its means to be met, after the sentence was announced, with a request to give the Defendant time to pay.  We would have been quite within our rights to reject that request but, ultimately, the Court determined that the Defendant should pay £50,000 within seven days and the balance, including costs, by 31^st March 2022.

Authorities

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

AG -v- Bidmead [2021] JRC 239.