Jersey Unreported Judgments

Inferior Number Sentencing - health and safety

[2023]JRC062

Royal Court

(Samedi)

21 April 2023

Before     :

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

The Attorney General

-v-

Hacquoil and Cook Ltd

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

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

Plea: Guilty.

Details of Offence:

On the 16 February 2022 an employee of the Defendant Company was operating an excavator to carry out lifting of 13 palletised stone/loads when, during the latter stages of the lifts, the excavator tipped onto its side and landed on a granite pillar wall forming part of the new wall under construction.  A metal bollard, which made up a component of the wall, went into the cab and narrowly missed the employee.  As a result of the excavator tipping whilst lifting the load, loose granite slabs fell from the pallet onto an embankment below in Winston Churchill Park.  Fortunately, nobody was physically injured but the employee was signed off work for one week due to the stress and shock he suffered.  The employee was trained to use an excavator but not competent to carry out lifting operations and had never carried out any lifting task whilst employed by the Defendant Company.  The incident arose out of the use of an employee inexperienced and untrained in carrying out lifting operations and an unsafe system of work.  As result of this, other workmen on site but not employed by the Defendant Company were exposed to risk to their health and safety and, by virtue of the slabs falling into Winston Churchill Park, members of the public were exposed to a remote risk of harm to their health and safety.

Details of Mitigation:

Early guilty pleas, reported the incident to the Health and Safety Inspectorate shortly after the incident, cooperation with the investigation, including providing the CCTV capturing the incident. The Defendant Company had put measures in place since the incident.

Previous Convictions:

The Company had appeared before the Court for Health and Safety infractions in 1998 and 1982 but given the passage of time, these were not taken into account for sentencing purposes.

Conclusions:

Charge 1:	£12,500 fine.
Charge 2:	£12, 500 fine

Total:  £25,000 fine.

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

Sentence and Observations of Court:

Charge 1:	£20,000 fine.
Charge 2:	£12,500 fine.

Total:  £32,500 fine to be paid within one month.

Costs ordered in the sum of £5,000 to be paid within one month.

L. Sette Esq, Crown Advocate.

Advocate C. Hall for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The Defendant Company has pleaded guilty to two offences contrary to the Health and Safety at Work (Jersey) Law 1989.  The first offence concerned exposing one of the Defendant's employees, Mr Pestana, to a risk to his health and safety by failing to maintain a safe system of work for the lifting of a load of granite slabs, including failing to provide appropriate training to Mr Pestana so as to enable him to safely lift the load.  The second offence concerned exposing persons other than the Defendant's employees, namely members of the public who may have been using Winston Churchill Memorial Park, St Brelade at the time to a risk to their health or safety arising from the tipping over of the load of granite slabs being lifted by a 5-tonne excavator being operated by Mr Pestana at the time.

2.        To these offences, the Defendant has pleaded guilty at the first opportunity and will receive full credit for those pleas.

3.        In February last year, the Defendant was carrying out a residential project in St Brelade involving, inter alia, the construction of a granite wall.  Although the building of the wall had been sub-contracted to another company, the Defendant was responsible for bringing 13 loads of stone onto site down a sloping driveway.  Each load of granite slabs weighed in the region of three-quarters of a tonne.

4.        On 15 February, the Defendant's site manager convened an urgent site meeting to consider which equipment should be used to move the granite which was due to arrive the following day.  It was decided, having considered other equipment, that a 5-tonne excavator with a lifting attachment would be used.  Such excavators are principally concerned with excavating and handling loose material and whilst they can be used for lifting operations, this introduces an additional risk not present when using equipment specifically designed for lifting.  The guidance for use of such vehicles in this way provides that "only where a robust risk assessment clearly demonstrates that it is not reasonably practicable to provide machines specifically designed for lifting operations should excavators be considered, and only if the risk associated with such use can be adequately controlled or other suitable measures put in place to mitigate those risks."

5.        An employee of the Defendant, Mr Pestana, was trained to operate the excavator in that he had carried out an appropriate training course conforming to the relevant legislation.  However, this training did not extend to lifting operations and he had not had that specialist training.  Furthermore, Mr Pestana had never carried out any lifting task with a digger prior to this incident and he had not used a digger at all other than when he first joined the Defendant Company approximately two years prior to the incident.  The basis of plea reduced into writing on behalf of the Defendant and accepted by the Crown admits that the training supplied to Mr Pestana did not include lifting training.  The basis of plea accepts that Mr Pestana was not regularly operating an excavator in his employment with the Defendant and the Defendant further accepts that it failed to provide refresher training before allowing Mr Pestana to operate the excavator on the day in question.  Further, the Defendant also admits that it failed to provide Mr Pestana with the relevant lifting training which it now knows would have involved a separate training course.  In relation to the plea of guilty at Charge 2, the Company admits "Mr Pestana was not competent to carry out the lifts in the excavator and it was the Company's responsibility to ensure such competency."  In consequence, the Company admits there was a risk to persons other than employees of the Defendant arising from the accident that took place on the day in question.

6.        The first phase of the work that took place on 16 February 2022 involved bringing thirteen loads of stone to the site from the entrance to the site.  The second phase involved moving two loads of spare granite in the opposite direction from an area by the garage to the property up to the entrance of the site.

7.        During the first phase of the work, the site manager had cause to say to Mr Pestana on at least two occasions that he needed to keep the load he was carrying closer to the cab and retract the arm as he felt it was too far extended.  The site manager also felt the need to speak to Mr Pestana and ask him if he was both happy and confident to continue with the work.  Accordingly, even prior to the incident both the Defendant's site manager and foreman were concerned about Mr Pestana's competency to carry out the lifts before phase 2 of the work began which was the riskiest and most difficult aspect of the work as the pallets were, in the assessment of Mr Pestana, heavier and on any view contained loose random off cut slabs.  Mr Pestana said, "there were no instructions on how these pallets were going to be lifted by the digger."

8.        Mr Pestana received no guidance on how to carry out this aspect of the task and could see that the last pallet, in his view, "looked very heavy".  He asked a foreman from the contractor, Granite Le Pelley, to get someone to remove some of the slabs onto another pallet to reduce the weight and Mr Pestana said he was told this would take too long.

9.        This final lift and the lift prior to it (which was carried out successfully) were captured by CCTV footage.  The first lift was carried out by Mr Pestana reversing the excavator up the drive.  In respect of the second and final lift, Mr Pestana lifted the load so as to clear a wall positioned on the edge of the site bordering the park below.  As he did so the angle of the excavator along with the angle and extension of the arm and the weight of the load collectively exceeded the tipping capacity of the excavator which tipped over.  The excavator landed on a granite pillar, forming part of the new wall which had been constructed.  A metal bollard, forming part of the wall, penetrated the gap of the open cab door and narrowly missed Mr Pestana.

10.      Loose granite slabs fell from the pallet onto an embankment below, exposing members of the public to a risk, albeit a remote one, of serious injury.

11.      Mr Pestana was not injured but he was signed off for a week owing to stress and shock and the footage shows a number of persons working for the Defendant and sub-contractors present in the vicinity of the accident at the time who were also potentially put at risk.

12.      The Defendant co-operated with the investigation but this was, in the circumstances of the case as we have summarised, an accident waiting to happen as is graphically shown by the CCTV footage we have viewed today. 

13.      We broadly agree with the Crown's assessment of the culpability and harm in this case, subject to what we say below.  As to the Defendant's culpability, we agree that this was a case of moderate/of medium seriousness; although this was a serious failure it was not systemic and was limited to a single occasion.  The Defendant failed to ensure that Mr Pestana was adequately trained.  He had not, in any event, regularly operated an excavator.  The Company accepts it failed to provide him with refresher training.  The Company accepts that it failed to provide Mr Pestana with the relevant lifting training and, in any event in our view, he was inadequately supervised when carrying out this work. It is also accepted that the method statement for this particular piece of work was flawed.

14.      Furthermore it is accepted by the Defendant in its basis of plea that Mr Pestana was not competent to carry out lifts by use of this excavator and the Company accepts that it was its duty to ensure such competency.  The Company accepts that the public were put at risk, albeit small risk, of serious injury.

15.      As to the risk of harm in this case, the seriousness of the harm risk was high.  We have had regard, as invited by both parties, to the relevant English Guidance, purely for the purpose of considering culpability and harm and in our view this was a case where there was a risk of death or serious physical or mental impairment certainly to Mr Pestana, and possibly to those around him.  As to the risk presented to the public was the risk of harm was serious but the risk of such harm occurring was low.  Overall we regard this as a case, so far as Charge 1 is concerned of there being a level A case, in accordance with the English Guidelines lists a risk of serious harm and a medium likelihood of such harm.  From the above it is clear that we accept the Crown's description of culpability but regard the Crown as understating the risk of harm on the first charge although not on the second charge.

16.      The Defendant has produced its accounts showing turnover for 2021 of £20 million, turnover for 2022 of £14 million with a gross profit for 2021 of £1.8 million and in 2022 of just under £1.4 million.  Retained profit in the business carried forward is in excess of £3.5 million.  The Company is a substantial going concern that is doing well.  We take into account all the Defendant has done to improve training and systems to ensure that this sort of incident does not occur again and we accept that the Defendant is generally alive to the need to ensure compliance with its health and safety obligations. 

17.      The Crown in its conclusions did not refer to the recent authorities on health and safety or indeed the relevant passages from the English Court of Appeal case of R v F Howe and Son (Engineers) Ltd [1999] 2 Cr App R (S) 37 which were analysed in the case of AG v CNR Construction [2022] JRC 050, where the Court set out the relevant principles at paragraphs 22 - 24 inclusive under the title "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."

We repeat and adopt those principles today.

18.      In conclusion, this was a serious breach of the health and safety legislation.

19.      We have had regard to the cases placed before us but do not think it appropriate or necessary to compare the fines imposed in those cases.  Each case turns on its own facts.  We have stood back from the facts of this case in order to assess what the appropriate fine should be and we hold that the appropriate fine in this case on Charge 1 is £20,000, Charge 2, £12,500 making a total of £32,500.  We order the Defendant to pay the Prosecution costs of £5,000 and give the Defendant one month to pay these sums.

Authorities

Health and Safety at Work (Jersey) Law 1989.

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

AG v CNR Construction [2022] JRC 050. 

AG v GMK Construction Limited [2021] JRC 114.

States Employment Board v AG [2020] JRC 259.

AG v BRB Site Excavation and Groundworks Ltd [2020] JRC 007.

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

AG v Alfa Ground Works Limited [2013] JRC 225.

AG v Amplus Limited [2010] JRC 132.