Jersey Unreported Judgments

Health and Safety - ruling given at trial

[2022]JRC249

Royal Court

(Samedi)

11 November 2022

The Attorney General

-v-

ROK Homes Limited

S. C. Thomas Esq., Crown Advocate.

Advocate C. Hall for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        During the course of the trial of the above prosecution before the Inferior Number, I gave a ruling on the meaning of the expression "existing services" in Regulation 21 of the Health and Safety (Management in Construction) (Jersey) Regulations 2016 ("the 2016 Regulations").  What follows constitutes the reasons for that ruling.

The Proceedings

2.        Article 21(1)(b) of the Health and Safety at Work (Jersey) Law 1989 provides that it is an offence for a person "...to contravene any health and safety Regulations or any requirement or prohibition imposed under any such Regulations ...".

3.        ROK Homes Limited ("the Defendant") was charged with an offence under Article 21(1)(b) by contravening Regulation 21 of the 2016 Regulations.  Regulation 21 provides as follows:

"21.    Existing Services

(1)       Before the commencement of construction work, the relevant contractor must, so far as reasonably practicable, ensure that existing services at the construction site are identified and that the condition of, and risks imposed by, those services are assessed in accordance with this Regulation.

(2)       The assessment is in accordance with this Regulation if it identifies:

(a)   the types of existing services;

(b)   the locations of the services and whether they are underground, overhead or contained within a structure;

(c)   the extent of the services; and

(d)   the risks that the services present, including the risks of electric shock, fire, explosion and an inrush of water.

(3)       If contact with an existing service would present a risk to any person on the construction site, the relevant contractor must ensure that the existing service is removed or disconnected, or otherwise isolated from the work to be carried out, so that contact with the service will be prevented."

4.        The charge brought against the Defendant was in the following terms:

"ROK Homes Limited between 22 November 2020 and 9 February 2021 at Pineridge, West Hill, in the Parish of St Helier, failed as a relevant contractor, to comply with Regulation 21 of [the 2016 Regulations] by:

(a)       Failing so far as reasonably practicable to ensure that an existing electrical service to Pineridge had been identified.

(b)      Failing so far as reasonably practicable to ensure that the risks posed by an existing electrical service were assessed in accordance with Regulation 21(2).

(c)       In circumstances where contact with the service would present a risk to any person on the site, failed to ensure that the supply was disconnected or otherwise isolated so that contact with the service was prevented."

5.        The circumstances giving rise to the prosecution were as follows.

6.        The Defendant was contracted by Andium Homes to build a property at an address known as Pineridge ("the site").  The project began in November 2020.  Prior to then the site was derelict.  The initial works at the site included clearing the overgrown vegetation and preparation for the installation of basic infrastructure for the construction project, including temporary water and electricity supplies.

7.        On 23 November, a trench was dug near the entrance to the site in order that a temporary water supply could be installed.  When the trench was dug, the site foreman of the Defendant noticed that there was an electricity cable exposed in the trench.  This was not a cable which appeared on any of the plans which had been provided by the Jersey Electricity Company ("JEC").  The site foreman carried out a CAT scan but this was negative.  The trench was left open but was partially covered over with a steel plate so that access to the site was maintained.

8.        On 5 December 2020, after clearance of the trench, the temporary water supply was installed by a plumber and the trench was subsequently backfilled.  However, immediately before the backfilling, the site foreman noticed that the cable, which was now more visible, had a frayed end in that bare wires were sticking out of the end of the cable.  He CAT scanned it again but there was still no positive reading.  The site foreman bent the end of the cable and inserted it into a traffic cone which was placed upright in the trench, which was then backfilled.   The site foreman's intention was to mark the location of the frayed end of the cable.

9.        On 8 February 2021, two employees of Geomarine, who were sub-contractors of JEC, dug up the trench in order to install a temporary electricity supply.  According to the prosecution case, they both received minor electric shocks when coming into contact with the frayed end of the cable.

10.      A factual issue during the course of the trial was whether the frayed cable was live or dead.

11.      During the course of the trial, I circulated draft legal directions to the Jurats which stated that, in order to convict, the Jurats had to be sure that the frayed end of the cable was live.  Crown Advocate Thomas took issue with this.  He submitted that, although it was the prosecution case that the cable was indeed live, it was not necessary for the prosecution to prove this in order for there to be a breach of Regulation 21.  In the circumstances I asked both sides to make written submissions on the point, which they did.

Discussion

12.      Regulation 21(1) imposes a duty, so far as reasonably practicable, to identify and to assess "existing services".  Similarly, the duty imposed under Regulation 21(3) refers to "an existing service".

13.      Regulation 1 of the 2016 Regulations provides: ""service" means a gas, water, sewerage, communication, or electrical, service or other service, such as a chemical, fuel or refrigerant line".

14.      No assistance is given in the Regulations as to when a service is 'existing'.  The prosecution referred to the Safeguarding of Workers (Electricity at Work) (Jersey) Regulations 1983 where the expression 'electrical equipment' is defined as meaning ".... anything used, or installed for use, to generate, transform, convert, distribute, control, store or use electrical energy."  [Emphasis added].  Advocate Thomas submitted that "existing" should not be interpreted as requiring a service to be live, rather, it should be interpreted as a cable, pipe etc., which is used or is installed to supply electricity, gas etc.

15.      In support of his argument, Advocate Thomas referred to the decision of the English Court of Appeal in R -v- Board of Trustees of the Science Museum [1993] 1 WLR 1171.  The issue in that case was as to the correct interpretation of Section 3(1) of the Health and Safety at Work Act 1974 which provided:

"It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety."

16.      The facts of that case were that the Museum's air conditioning cooling tower was inspected and found to contain legionella pneumophila, the bacterium causing legionnaires disease.  The Museum submitted at the end of the trial that there was no case to answer as no actual risk to the public's health had been proved.  The judge rejected that submission and directed that the prosecution did not have to prove that members of the public had inhaled the bacteria, or that the bacteria had been outside the building to be inhaled, but that it was sufficient if there had been a risk of it being there.  The Museum was convicted and subsequently appealed.

17.      The Court of Appeal dismissed the appeal holding that, on a true construction of section 3(1) of the 1974 Act, it was sufficient for the prosecution to prove that members of the public were exposed to a possibility of danger; and that the risk that harmful bacteria might emerge into the atmosphere outside the Museum's building had exposed members of the public to a possibility of danger.  Advocate Thomas relied particularly on the following extract at 1177:

"The starting point must be the ordinary meaning of the language of section 3(1).  In our judgment the interpretation of the prosecution fits in best with the language of section 3(1).  In the context the word "risks" conveys the idea of a possibility of danger.  Indeed, a degree of verbal manipulation is needed to introduce the idea of actual danger which the defendants put forward.  The ordinary meaning of the word "risks" therefore supports the prosecution's interpretation and there is nothing in the language of section 3, or indeed in the context of the Act, which supports a narrowing down of the ordinary meaning.  On the contrary, the preventative aim of sections 3, 20, 21 and 22 reinforces the construction put forward by the prosecution and adopted by the judge.  The adoption of the restrictive interpretation argued for by the defence would make enforcement of section 3(1), and to some extent also of sections 20, 21 and 22, more difficult and would in our judgment result in a substantial emasculation of a central part of the Act of 1974.  The interpretation which renders those statutory provisions effective in their role of protecting public health and safety is to be preferred."  [Advocate Thomas' emphasis].

18.      And at 1178:

"The defence also argue that if the prosecution's interpretation is accepted the result may be that, subject to the defence of reasonable practical ability, all cooling towers in urban areas are prima facie within the scope of the prohibition contained in section 3(1).  On the evidence led in the present case that may be correct.  Almost certainly such a result would be true of a number of extra-hazardous industrial activities.  Subject only to the defence of reasonable practical ability, section 3(1) is intended to be an absolute prohibition.  Bearing in mind the imperative of protecting public health and safety, so far as it is reasonably practical to do so, the result can be faced with equanimity."  [Advocate Thomas' emphasis].

19.      Advocate Thomas also referred to the decision of the English Court of Appeal in R v Willmott Dickson Construction Limited [2012] EWCA Crim 1226 where at [18], having referred to the Science Museum case, the Court said:

"It is important to observe two matters from this judgment.  The first is the concept of risk as conveying the idea of  a possibility of danger, and secondly the social policy provisions which underpinned the court's interpretation and construction of the statutory provisions, notwithstanding the onerous responsibilities that may be cast upon defendants in those circumstances."

20.      Advocate Thomas submitted that to interpret "existing" as requiring an electricity cable to be live would be inconsistent with the purposive approach established in the Science Museum case.  A contractor who decides to "take a chance" and not carry out a risk assessment on the basis that the cable might not be live, would escape liability if the cable in fact turned out to be dead notwithstanding what might be described as a cavalier approach to health and safety.  That would not be consistent with the purpose of the 2016 Regulations, which was to ensure that a site is fully assessed and the status of any cables ascertained prior to the carrying out of construction work.  The prosecution's construction of "existing services" was the only one which rendered Regulation 21 effective for the purposes of ensuring that work on a site is carried out safely.

21.      I fully accept that, when interpreting health and safety legislation, it is appropriate to have regard to the important objective of protecting public health and safety, as emphasised in the Science Museum case.  However, the Court is bound by the wording the legislature has chosen to use.  Regulation 21 does not refer simply to a 'service'.  It qualifies that by providing that it must be an 'existing service'.  I do not see how an electricity cable which is dead  can be said to be an existing electrical service (as correctly specified in the charge against the Defendant).

22.      Nor do I accept that such an interpretation would emasculate Regulation 21.  If a contractor comes across a cable and does not know whether it is live or dead, he will undoubtedly be guilty of an offence by breaching Regulation 21 if he does not take all reasonably practical steps to ascertain whether the cable is live or dead and it subsequently turns out to be live;  similarly, if he does not carry out such steps before going on site.  It therefore seems to me unlikely that that the interpretation which I have placed upon Regulation 21 will lead to contractors simply taking a chance and not complying with the duty imposed on them under Regulation 21.

23.      For these reasons, I directed the Jurats that, in order to convict the Defendant, they would have to be sure, as a first step, that the cable in this case was a live cable, so as to constitute an existing electrical service.

Commencement of Construction Work

24.      It may be helpful if I touch briefly on another point which arose during the trial.

25.      As can be seen, the duties imposed by Regulation 21(1) to identify and to assess an existing service so far as reasonably practicable are duties which are to be performed "before the commencement of construction work". 

26.      "Construction work" is defined in Regulation 3 in very wide terms.  The relevant parts of Regulation 3 provide as follows:-

"(1)     In these Regulations "construction work" means any work of construction, alteration, conversion, fitting out, commissioning, renovation, repair, maintenance, de-commissioning, demolition or dismantling of any structure and includes;

.... (c)  the installation, commissioning, maintenance, repair or removal of mechanical, electrical, gas, compressed air, hydraulic, telecommunications, computer or similar services that are normally fixed to a structure; and

...  (d) any work of excavation, landscaping, preparatory work or site preparation carried out for the purpose of any work or activity referred to in this definition (otherwise than in this sub-paragraph)."

27.      I must confess that my preliminary view, on first reading Regulation 21 in conjunction with the wide meaning of 'construction work' in Regulation 3, was that the duties in Regulation 21(1) had to be performed before any construction work began i.e. at the beginning of the whole construction project.

28.      However, neither Advocate Thomas nor Advocate Hall agreed with this interpretation.  They both agreed that the expression "construction work" was to be interpreted as referring to individual items of construction work which needed to be carried out as part of the overall construction project.  However, they disagreed on the facts as to what would constitute individual items of construction work.

29.      Advocate Thomas submitted that there were at least four relevant separate items of construction work.  The first was excavation of the trench on 23 November 2020, the second was the clearing of the trench on 5 December 2020 before the water pipe had been laid, the third was backfilling the trench on 5 December 2020 after the water pipe had been laid and the fourth was excavating the trench on 8 February 2021 in preparation for the installation of the temporary electricity supply.  The prosecution therefore said that the alleged failures of the Defendant to identify and assess the service occurred on 23 November 2020 (when the cable was first seen) and this was before all the construction work except the first item of excavating the trench.  They further submitted that, even if the Jurats were to find that the failure to identify and assess the service only took place on 5 December 2020 (when the frayed end was discovered), that failure was before two items of construction work, namely before the backfilling of the trench on 5 December 2020 and the excavating of the trench on 8 February 2021.

30.      The defence on the other hand said that there was only one item of construction work relevant for this case, namely the provision of a temporary water supply.  That item of construction work began on 23 November 2020 with the digging of the trench and continued until completion of the backfilling of the trench on 5 December.  The defence accordingly submitted that any failure on the part of the Defendant (whether on 23 November when the cable was first seen or on 5 December when the fact that it was frayed was observed) was not before the commencement of the relevant construction work and accordingly the Jurats had to return a verdict of not guilty.

31.      With the agreement of counsel, I therefore directed the Jurats that there could be separate items of construction work and it was for them to decide as a matter of fact when the construction work in this case began and therefore whether any breach of the duties imposed by Regulation 21(1) had occurred before the commencement of construction work.

32.      I raise the point merely to suggest that the current situation is not very satisfactory.  If the interpretation favoured by the Prosecution and the Defence in this case is correct, it is invariably going to lead to considerable debate and uncertainty as to what constitutes a particular item of construction work before which the duties in Regulation 21(1) must be performed.  As against that, if my provisional interpretation is correct, whilst this would have the advantage of clarity and certainty and would make it clear that this was a duty imposed on a contractor before he starts work, it would be rather unsatisfactory in dealing with issues which arose after the construction work as a whole had begun, although there would in those circumstances be alternative charges which could be considered, such as allegations of breaches of the general duties under Article 3 or Article 5 of the 1989 Law.

33.      In summary, I raise this matter simply for the purpose of drawing it to the attention of the relevant authorities so they can consider whether any clarification of the present wording of Regulation 21 would be helpful.

Authorities

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

Health and Safety at Work (Jersey) Law 1989. 

Safeguarding of Workers (Electricity at Work) (Jersey) Regulations 1983. 

R -v- Board of Trustees of the Science Museum [1993] 1 WLR 1171. 

Health and Safety at Work Act 1974. 

R v Willmott Dickson Construction Limited [2012] EWCA Crim 1226