Jersey Unreported Judgments

[2007]JRC061

ROYAL COURT

(Samedi Division)

9^th March 2007

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Clapham and King.

The Attorney General

-v-

PAR Developments Limited

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

1count of:

Contravention of Article 21(1) (c) of the Health and Safety at Work (Jersey) Law 1989, as amended.  Specifically regarding the contravention of Regulation 53 of the Construction (Safety Provisions) (Jersey) Regulations 1970, as amended.

Plea: Guilty

Details of Offence:

The Company was undertaking refurbishment of a farm, converting it into three units.  During the course of refurbishment it was necessary to apply plasterboard to the interior of the walls.  Mr Le Gros, a carpenter with thirty years' experience, applied plasterboard up to a height of approximately 11'9".  It was then necessary to work at first floor level above the stairwell.  He placed a scaffolding board, some ten feet long and nine inches wide, across the stairwell.  One end of the board was resting on a ladder.  Mr Le Gros sat on the board, whilst another employee passed him the heavy plasterboard sheets (8ft. x 4 ft.).  The other employee then went up to the second floor level, stood on a timber floor joist and took the plasterboard from Mr Le Gros.  Whilst handing the plasterboard up to the other employee, Mr Le Gros unbalanced and fell to the concrete floor below, suffering injury namely a broken skull, broken neck vertebrae and fractures to both wrists.

Details of Mitigation:

Guilty pleas.  Co-operation with Investigation Officers.  Good character.  Small company with usually only one employee, namely Mr Le Gros.  Directors had relied on experience of Mr Le Gros to work safely.

Previous Convictions:

None.

Conclusions:

Count 1:

£12,000 fine.

£2,500 costs, time to pay at discretion of the Court.

Sentence and Observations of Court:

Conclusions granted.

2 weeks to pay the fine and costs.

C. M. M. Yates Esq., Crown Advocate.

Advocate C. R. G. Davies for the Defendant.

JUDGMENT

the Commissioner:

1.        The use of a narrow 9 inches wide timber board at first and indeed second floor levels as a platform to manoeuvre an erect sheets of plasterboard some 8ft x 4ft was manifestly unsafe, and the risk of serious or even fatal injury to the two employees engaged in this work was high.  In the course of manhandling one of these sheets of plasterboard, the ladder holding the platform slipped and Mr Le Gros fell some 9 feet on to the concrete floor sustaining serious injuries, namely two broken wrists, a fractured skull and a broken bone in his neck.  He has fortunately made a good recovery.  Mr Green, who was sitting on a similar narrow timber board at second floor level some 18 feet above the concrete floor, was left holding the full weight of the plasterboard.  He could not keep hold of it but fortunately had enough strength to swing it towards the first floor, preventing it from landing on Mr Le Gros.

2.        Mr Philip Cadoret a director and part beneficial owner of the Defendant company was onsite and was, therefore, in overall control of the works undertaken, but it is clear that he had left it to Mr Le Gros to choose the system of work for this particular operation.

3.        Mr Le Gros who was 60 years of age had very considerable experience in the industry but, as demonstrated by the accident, he did not possess sufficient understanding of health and safety matters to enable him to fulfil his role properly.  It is also clear that Mr Cadoret had not received sufficient training to ensure that he was competent to control the site.

4.        The Court has been referred to the English Court of Appeal case of R v Howe [1999] All ER 255, which is an authority under the English legislation on which our legislation is based.  The Court there set out the following aggravating features: death resulting from the breach, failure to heed warnings, and risks run specifically to save money, and the following mitigating factors: prompt admission of responsibility and a timely plea of guilt, steps to remedy the deficiencies after they are drawn to the Defendant's attention and a good safety record.  As the Crown properly accept there are none of these aggravating features present in this case, and by way of mitigation, the Defendant company has readily admitted responsibility and entered a timely plea of guilty.  Furthermore it has no previous convictions and we note the steps that the company has taken to prevent this happening again.

5.        Other relevant factors identified in the case of Howe are the degree of risk, the extent of danger created by the offence, the extent of the breach, the Defendant's resources and the effect of a fine on its business.  The Defendant company has asked the Court not to take its financial circumstances into account when considering an appropriate fine.  It is clear the degree of risk here was very high and it is a matter of good fortune that Mr Le Gros was not more seriously injured or even killed.  As the English Court of Appeal in Howe stated:

"The objective of prosecutions for health and safety offences in the work place is to achieve a safe environment for those who work there....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."

The Court of Appeal went on to say that the size of a company cannot affect the degree of care that is required in matters of safety because otherwise employees of small concerns would be liable to find themselves at greater risk than employees of large concerns.  Those organisations who do not have their own expertise in house can obtain it through consultants or, if necessary, by seeking assistance from the Health and Safety at Work Inspectorate.

6.        The Court has also been referred to the case of AG v Camerons Limited [2000] JRC 235 where an employee fell 9 feet from a wall unprotected by appropriate scaffolding and suffered injury.  On the facts and mitigation available in that case a fine of £10,000 and costs of £2,000 were imposed.  The Crown submits that, in view of the 6½ years that have elapsed from the date of that case, the level of fine should be increased.

7.        The Court has some sympathy with the directors and can understand how they came to rely upon the judgement of Mr Le Gros.  However, safety is of paramount importance and the directors of any company have to take responsibility for actively ensuring that safe systems of work are employed and this has been accepted by the directors.  We note the steps that they have taken with a view to preventing this happening again.

8.        The Court is going to grant the Crown's conclusions and impose a fine of £12,000 and costs in the sum of £2,500 and will allow the Defendant company two weeks to pay.

Authorities

R -v- Howe [1999] All ER 255.

AG -v- Camerons Limited and GH Limited [2000] JRC235.