Jersey Unreported Judgments

Inferior Number Sentencing - contravention of Health and Safety at Work (Jersey) Law 1989.

[2017]JRC086

Royal Court

(Samedi)

9 June 2017

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Ramsden and Christensen.

The Attorney General

-v-

Somerville Limited

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

1 count of:

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

Plea: Guilty.

Details of Offence:

Somerville Limited "the Company" specialises in the fabrication and installation of solid surfaces and cabinet making.  A 44-year-old employee was seriously injured when a stack of melanine faced chipboard (MFC) boards fell onto him as he tried to retrieve two boards from a stack.  The boards overbalanced and toppled forward, striking the employee as he tried to run clear.  The employee was pushed to the ground with such force that he sustained a fractured hip.  Further injuries included serious lacerations to both his shins from the falling materials, and a laceration to his left eye and left ear sustained when his head struck offcut materials which had been stored leaning against the wall on the opposite side of the workshop.  His outer ear was partially severed.  The subsequent investigation by the Health and Safety Inspectorate (HSI) found that there was no systematic approach by the Company to assessing and controlling risks, no specific risk assessment in respect of the storage and retrieval of boards and no formal or structured training in health and safety matters provided to employees.  Recent expansion and a high workload had resulted in an unusually large amount of materials being used and stored on the premises, which had already been recognised as too small.  At the time of the accident a combination of high workload, increased amounts of board material, restricted working space, an insufficient racking system in the workshop, over reliance on employees to apply common sense and work safely and a lack of any structured pro-active approach to managing and controlling the recognised health and safety risks combined to result in the employee sustaining serious injury.  It was also noted that the company had had an H&S inspection highlighting this very issue (safe stacking/retrieval of board materials). 

Details of Mitigation:

The Company co-operated with the investigation and admitted the infraction at the first opportunity.  Since the accident the Company had engaged with a health and safety consultant and health and safety training provider and taken extensive action to address health and safety matters and was complying with its legal obligations. 

The Company provided a financial affidavit at the request of the Court. 

Previous Convictions:

None.

Conclusions:

Count 1:

£15,000 fine plus costs in the sum of £5,000.

Sentence and Observations of Court:

Conclusions granted. 

Total penalty of £20,000 to be paid at a rate of £800 per month. 

C. R. Baglin, Esq., Crown Advocate for the Attorney General.

Advocate D. A. Corbel for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        The defendant company stands to be sentenced for one infraction of the Health and Safety at Work (Jersey) Law 1989.  The defendant company specialises in the fabrication and installation of solid surfaces, granite, wood and quartz and cabinet making.  It undertakes work on behalf of many local kitchen companies, fabricating and fitting domestic kitchens and work tops as well as carrying out bespoke domestic and commercial projects. 

2.        At the date of the accident the defendant company employed nine people; three directors, five employees and one self-employed carpenter who had been sub-contracted by the defendant company on a temporary basis to assist with a particularly work load.  We are told that all of the employees were experienced.  The three directors and shareholders were Peter Lewandowski, Ian Somerville and his wife Tracey Somerville.  All three directors are actively involved with the day-to-day running of the business.  Peter Lewandowski and Ian Somerville work in the workshop and on the site whilst Tracey Somerville runs the administrative side of the defendant company. 

3.        The defendant company contacted the Health and Safety Inspectorate at the Social Security Department when it first moved to the workshop in 2012, requesting general advice and guidance on the legal requirements relating to the management of health and safety within their business. 

4.        The director of the Health and Safety Inspectorate, subsequently visited the workshop and provided extensive guidance on the legal requirements and identified specific issues, which he felt the company needed to address in order to ensure compliance with the minimum standards, in a comprehensive eight page letter of 1^st June, 2012. 

5.        The letter made specific reference to the safe storage of materials under the heading "Comments on matters as a result of the walk through the workshop" and highlighted the need to consider how materials were stored and handled on the premises. 

6.        The letter enclosed an information sheet entitled "Safe stacking of sawn timber and board materials".  This information set out the main principles regarding safe storage and retrieval of stacked boards.  The information sheet recorded that "20% of fatal injuries and 13% of major injuries in wood working are caused by being struck by falling and flying objects for example timber falling from stacks."

7.        Controlling the risks associated with storing and retrieving board materials is straightforward and easily achieved.  Appropriate storage racking is widely available, relatively inexpensive and relatively easy to construct in-house.  Safe retrieval methods are widely known and are set out in the information sheet that was supplied. 

8.        On 10^th March, Mr Carl Le Quesne, an employee of some three years standing was seriously injured trying to move large 'MFC' boards weighing some 10 stone each, which had been stacked vertically and lent against the stacking system that was otherwise too small to take them.  They were secured there with a restraining strap. 

9.        The strap was removed and he held the boards in a vertical position whilst colleagues pulled out a required board sideways.  The boards he was holding were too heavy for him and overbalanced striking him as they fell.  He sustained a fractured hip, lacerations to his shins and to his left eye and ear.  His outer ear was partially severed.  He has thankfully recovered from his injuries but will require some plastic surgery to his ear. 

10.      An investigation by the Health and Safety Inspectorate revealed a number of deficiencies including the fact there was no specific risk assessment for the retrieval of these large boards and for their storage.  Employees were left to determine safety between themselves. 

11.      The English Court of Appeal in R v Howe and Son (Engineers) Ltd [1999] 2 Cr. App.R. (S.) sets out the considerations to be taken into account when sentencing a company for health and safety breaches which the prosecution have taken us through and in general terms we accept the comments they make in respect of each.  As made clear in Howe any fine should reflect not only the gravity of the offence but also the means of the offender.  The objective of prosecutions for health and safety offences in the workplace is to achieve a safe environment for those who work there and members of the public who might 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.  The fine should not be so large, however, as to imperil the earnings of the employees or create a risk of bankruptcy, unless the offence is so serious that the defendant company should not be in business at all, which is not the case here. 

12.      The defendant company has supplied us with timely financial information including its accounts for the financial year ending 31^st January, 2017, and the two financial years prior to that which show the company making net losses, certainly for the last two years.  It also shows the amount drawn by the directors each year which we do not think is unreasonable for directors working full time, and it has to be noted that part of that remuneration remains unpaid.  The company has an overdraft which is now close to its limit of £35,000. 

13.      By reference to a number of earlier cases namely AG v Hamel Bros [2010] JRC 080, AG v Peter Green (Builders) Limited [2012] JRC 225 and AG v Flying Flowers Limited [2009] JRC 210, the prosecution seek a fine of £15,000 plus £5,000 costs, effectively a penalty of £20,000. 

14.      In terms of mitigation the company gave the Health and Safety Inspectorate every assistance.  It has pleaded guilty and it has apologised for this offence.  As was said by the director Mr Lewandowski "it was a big wake up call for them".  The company has engaged a health and safety consultant and carried out all of the recommendations put forward by that consultant at a cost of some £75,000.  The company has no previous convictions.  It was to its credit that it first approached Health and Safety Inspectorate for advice, although having got that advice it did not then address all of the recommendations that had been made when the business got busier. 

15.      Advocate Corbel did not challenge the level of the fine sought by the Crown and we agree with the conclusions put forward by the Crown in that respect.  However, the level of fine should not threaten the viability of the company.  This is clearly a good business, it is growing and it is providing local employment and in view of its financial situation we think it right to give it time to pay. 

16.      We therefore grant the conclusions and impose a fine of £15,000 and costs of £5,000 giving a total penalty of £20,000, that total amount to be paid at a rate of £800 a month. 

Authorities

Health and Safety at Work (Jersey) Law 1989. 

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

AG v Hamel Bros and Jersey Royal Co [2010] JRC 080. 

AG v Peter Green (Builders) Limited [2012] JRC 225. 

AG v Flying Flowers Limited [2009] JRC 210. 

Costs in Criminal Cases (Jersey) Law 1961.