Jersey Unreported Judgments

Inferior Number Sentencing - health and safety

[2024]JRC066

Royal Court

(Samedi)

22 March 2024

Before     :

R. J. MacRae, Esq., Deputy Bailiff, and Jurats Christensen MBE and Berry

The Attorney General

-v-

Skinner Skips Limited

Sentencing by the Inferior Number of the Royal Court, following conviction by the Inferior Number  to the following charges:

1 count of:

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

Plea: Not guilty.

Details of Offence:

Following a trial before the Inferior Number, the Defendant company was found to have failed to ensure, so far as was reasonably practicable, that employees were not exposed to risks to their safety, in that it failed to maintain a safe system of work for the testing of brakes on an HIAB truck.  The Defendant company also failed to conduct a risk assessment in relation to this work and provide training and supervision to employees when conducting motor vehicle repairs.

 

On 13 October 2022, Mr Skinner (the managing director and an employee) together with two other employees were testing the brakes on a truck in advance of a planned road test.  The rear of the truck was raised up off the workshop floor using a trolley jack.  The truck was secured using a post lift on the front nearside, which acted as a chock to stop the vehicle from rolling.  Mr Skinner climbed into the driver's seat of the truck, started the engine and put the vehicle in gear.  The rear wheels rotated and he tested the brakes, with his colleague indicating whether or not the wheels were stopping when the brakes were applied.  This was common practice for the Defendant company when testing brakes.

 

When Mr Skinner got out of the truck, he left the engine running, the truck in gear and the handbrake off.  The post lift, which had been acting as a chock, was then removed.  Mr Skinner then used the trolley jack to lower the rear wheels onto the workshop floor.  The truck began to move forward out of the workshop and into the yard.  Mr Skinner ran past the truck, opened the cab door and threw himself into the truck.  As he did this, the truck struck another truck parked in the yard causing the driver's door to close on Mr Skinner's leg.  Consequently, Mr Skinner's leg was crushed.  Mr Skinner suffered an open fracture of the tibia, peroneal nerve compression and significant tissue damage which required surgery and extensive grafting to repair.  He was in hospital for four weeks and off work for a considerable period of time.

 

The use of the trolley jack alone to support the truck was not sufficient.  There was a risk that the truck may slip or move, which could cause injury to any person working either side of underneath the truck.  Axle stands would have been the appropriate apparatus to support the truck, as this would have provided two points of contact.

 

The Defendant company had generic risk assessments concerning mechanical vehicle inspection or repair, which recorded that vehicles slipping off jacks onto any person inspecting or repairing it was a recognised danger.  The risk was assessed as high.  The risk assessment did not specifically deal with the risks to which employees were exposed whilst carrying out brake testing in the workshop.

 

None of the employees received formal training in automotive repair.

Details of Mitigation:

No previous convictions.

Previous Convictions:

None.

Conclusions:

Count 1:

£90,000 fine.

£5,000 towards Prosecution costs sought.

Sentence and Observations of Court:

Count 1:

£55,000 fine.

£5,000 towards Prosecution costs ordered.

Ms C. L. G. Carvalho, Crown Advocate.

Advocate D. S. Steenson for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The Defendant was convicted after a trial of failing to discharge its duty under Article 3 of the Health and Safety at Work (Jersey) Law 1989.  The Jurats found that all three particulars of the breach alleged in the indictment were proved.  Accordingly, they were satisfied that the Defendant failed to ensure that persons in its employment were not exposed to risks to their safety in that it failed to provide and maintain a safe system of work; secondly it failed to identify and assess the risk to health and safety to which its employees were exposed in failing to conduct a risk assessment and thirdly it failed to provide such training and supervision as was necessary to ensure the health and safety of its employees.

2.        The offence arose out of an accident which occurred on 13 October 2022 when the former owner and currently Managing Director and responsible for health and safety, Mr Skinner, was badly injured at work.  The circumstances were that on that day Mr Skinner and two colleagues were carrying out an on-site initial lorry brake test (prior to a planned road test) in the workshop at the Defendant's premises.  The lorry was raised using a trolley jack at the rear and the front near side of the vehicle was secured using a post lift which acted as a chock to stop the vehicle rolling.  Mr Skinner climbed into the lorry, started the engine and put it in gear allowing the rear wheels (which were jacked up) to rotate.  He then tested the brakes, with another employee informing him whether or not the wheels were stopping when the brakes were applied.

3.        Apparently, this was a common way for the Defendant to test the brakes of the vehicle.  There was no written procedure or risk assessment governing this method of work or evidence of any training as to the potential risks that it presented.

4.        Mr Skinner then got out of the lorry and - quite extraordinarily - left the engine running, the vehicle in gear and the handbrake off.  All these things were unnecessary.  Then, possibly acting with another employee, he removed the post lift which was acting as a chock at the front of the vehicle.

5.        Then Mr Skinner went to the rear of the vehicle and evidently satisfied himself that the rear wheels were no longer rotating, lowered the vehicle to the floor whilst the engine was still running and the lorry was still in gear.  The lorry accordingly began to move forward on its own.  Mr Skinner ran to the front of the vehicle and got back into the cab in order to stop the lorry.  As he did the vehicle struck another lorry causing the driver's door to close, crushing Mr Skinner's leg.

6.        Subsequently, the Health and Safety Inspectorate served a Prohibition Notice on the Defendant preventing the practice of raising vehicles on jacks and then driving the wheels to perform checks on the brakes.  The Defendant company declined a request for voluntary interview with the Inspectorate.  Mr Skinner's injury required surgery, extensive grafting and he was unable to work for a period of time.

7.        There had plainly been no, or no sufficient, risk assessment for this method of working.  This was, in the Court's judgment, an accident waiting to happen.  Further, to use a trolley jack alone to lift the vehicle itself was insufficient as the vehicle might slip or move and the use of axle stands would have been appropriate.  But the real problem arose from leaving the motor running and the vehicle in gear after the brake check and then removing the post lift.  This was plainly extremely risky and ultimately dangerous.

8.        The Defendant was convicted after a three day trial.

9.        The principles upon which we need to sentence the Defendant were set out by the Royal Court in the case of AG v CNR Construction [2022] JRC 050 as follows:-

"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 adopt those principles. 

10.     We have not been given the accounts for the Defendant today.  Counsel for the Defendant said that those accounts in any event would not present a fair picture and he has told us that the Company will pay any fine that the Court chooses to impose.

11.     The Crown has assessed the Defendant's level of culpability as high owing to the failure to put in place measures, including measures recognised by its own, albeit limited and not applicable to this operation, risk assessment.  This was in some senses, as submitted by defence counsel, an isolated incident but it arose from an unsafe system of work which had not been properly risk assessed. 

12.     The seriousness of harm risked and likelihood of harm were also high and this could have resulted in a fatal injury to Mr Skinner or indeed anyone else in the path of the lorry.

13.     We have listened with care to all that has been said on behalf of the Defendant and the penalty that we impose is a fine of £55,000.  We also order the company to pay a contribution towards the Prosecution costs in the sum of £5,000 making a total of £60,000 to be paid within 28 days. 

Authorities

Health and Safety at Work (Jersey) Law 1989. 

AG v CNR Construction [2022] JRC 050. 

AG v CNR Construction [2022] JRC 019

AG v Jersey Road and Driveway Repairs Limited [2021] JRC 310

AG v Petroleum Distribution Limited [2018] JRC 190

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