Jersey Unreported Judgments

Inferior Number Sentencing - Health and safety

[2022]JRC014

Royal Court

(Samedi)

21 January 2022

Before     :

Sir William Bailhache, Commissioner, and Jurats Dulake and Le Cornu

The Attorney General

-v-

A&A Scaffolding Solutions Limited

Sentencing by the Inferior Number of the Royal Court, following an admitted plea to the following charges:

1 count of:

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

Plea: Admitted. 

Details of Offence:

A&A Scaffolding Solutions Limited failed in their duty as an employer to ensure that the scaffold at Jersey Dairy was properly planned for and erected to recognised industry standards.  The design was non-standard and required specific technical drawings by a suitably qualified engineer to ensure the proposed design was safe.  That was not done as the Defendant Company acquiesced to the client's requests.  As a result of the failure persons working in and around the scaffold were exposed to a risk of injury or death as the scaffold was insecure and a 45 meter section collapsed and fell to the ground in the early hours of the morning on 4^th December 2020.

Details of Mitigation:

Breach admitted. Good safety record.  Some cooperation.  Appropriate action taken post-incident.

Previous Convictions:

None. 

Conclusions:

Charge 1:

£60,000 fine.

Cost order sought in the sum of £5,000.

Sentence and Observations of Court:

Charge 1:

£35,000 fine to be paid within 14 days.

Cost order made in the sum of £5,000.

C. R. Baglin Esq., Crown Advocate.

Advocate A. M. Harrison for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        The Defendant Company is charged with one infraction of Article 21(1)(a) of the Health and Safety and Work (Jersey) Law, 1989 in that, as an employer, it failed to discharge a duty to ensure, so far as reasonably practicable, the health and safety of persons not in its employment.

2.        The particulars of the offence indicate that the Defendant failed to ensure that the scaffold at Jersey Dairy was properly planned for and erected to recognised industry standards.  As a result persons working in and around the scaffold were exposed to a risk of injury or death as the scaffold was insecure, and indeed a 45 metre section collapsed and fell to the ground on 4^th December 2020.

3.        The circumstances were that the Defendant had been contracted to provide scaffolding at Jersey Dairy's main building in order to facilitate the installation of solar powered panels by Jersey Electricity and its sub-contractor on the roof of that building.  A similar project had been undertaken at farm premises in Trinity.  On that occasion there had been 13 scaffold towers used to secure some 188 metres of guardrail scaffolding, in addition to two loading bays and a scaffold staircase access.  Indeed, in the present case the Defendant originally specified the use of 25 scaffold towers to secure a guardrail of 237 metres in length and the Court has seen a number of relevant confirmatory materials in that respect.  However, Jersey Dairy had requested that there be no scaffolding which would interfere with their access to and egress from the building. 

4.        The Defendant should have informed Jersey Electricity that it could not erect the scaffold as requested to industry standards and it should have - it said it did - inform the sub-contractor Sun Works Limited that the scaffold request was not to industry standards.  But nonetheless, it duly did provide the scaffold as requested.  While that may have met the clients' requirements it fell below the standards; it was unsafe and unstable as demonstrated by its failure and collapsed.

5.        The Defendant had adopted a solution in the absence of planned scaffold towers which was to secure the guardrail system to the roof edge by what was called a "triangle fixing" on the east and west elevations but that did not work.  The Defendant had produced a site risk assessment in advance of carrying out the work.  The Health and Safety Inspectorate considered it was largely a generic document which did not address in any specific detail what was required in relation to the scaffold, or the work associated with it at the building.  It did not constitute a scaffold plan as required by Schedule 4 to the Construction Regulations in that it wrongly stated that no design drawing was required.  It also wrongly stated this was not a high-risk job.  All work at height is high-risk and although it stated that a more detailed risk assessment was required no further detailed risk assessment in fact was ever undertaken.  In practice, the Defendant had handed responsibility to erect the scaffold to one of its charge hands, an employee who had been an employed by the defendant for 3 years as a scaffolder.

6.        The fact that the guardrail was not properly secure was demonstrated in November when Sun Works, the sub-contractor reported that a section of the guardrail had failed and collapsed inward onto the roof of the building.  No one was injured, and the Defendant attended and righted the guardrail, fitting additional clamping along the gutters in that section.

7.        There were high winds on the 3^rd and 4^th December 2020 and at approximately 05:35am on 4^th December, a section of the guardrail some 45 metres in length collapsed and fell from the building to the ground, a height of about 8 metres.  Fortunately, no one was injured although a dairy employee had entered the building moments before the collapse of the scaffolding. 

8.        The Defendant admitted the infraction at an early stage.  It has already updated its policies and procedures among other things to give it sole charge, rightly, over decisions on critical elements of scaffold construction to prepare, design calculations for any non-basic scaffolds and to review safe work methods and risk assessment statements.  It has also in its new practice included a new provision enabling employees to participate in risk assessments and safe work method processes.

9.        The Health and Safety Inspectorate approve of these changes, while noting at the same time that they should have been part of the existing requirements as matters of good practice; and of course that must be right because ultimately it is the scaffold erectors, the companies in the position of the Defendant here, who have the responsibility for ensuring the safety of the structure which is being erected.

10.      In this case there is a possibility that there has been a flagrant disregard of the Law, and we say that in this context, the company knew it was departing from its own safety assessment and probably did so to ensure that the costs were cut for the client in order to secure the contract.  It thereby took a risk.  It failed to use its own safety consultant and, as an illustration of its approach in this context, it was persuaded into what it described as brick "sails" being affixed which were known to increase risk at the premises.

11.      So when we come to look at the question of deliberate or flagrant disregard, we have a hesitation about that in this case.  The Defendant has no previous convictions under the Health and Safety legislation, nor does it have a track record of having any matters drawn to its attention by the Health and Safety Inspectorate, which is to its credit.

12.      As we have indicated there has fortunately been no injury caused as a result of the offence.  But there is no doubt that the potential for injury, not only injury but potentially serious or death, was there.  The fact is that the erection of scaffolding is a high-risk business which requires a high level of attention for the safety of the structures concerned and very properly and rightly Advocate Harrison conceded that the Defendant acknowledges that it fell short in this respect.

13.      To some extent we think it is probably the case that the Defendant did make a financial gain as a result of the breach of the regulations in this sense that it enabled it to secure the contract which it had.  But we have also noted that in addition to the fact it had no convictions for Health and Safety offences, the Defendant retains professional health and safety consultants and provided training for its employees.

14.      The English Court of Appeal decision in R v F Howe and Son (Engineers) Limited [1999] 2 CR.App. R. (s) 37 that sets out a number of principles in relation to the health and safety at work infractions which have been applied by this Court in the past and we have done so here.

15.      We have considered the extent to which the Defendant fell short of the standards which ought to be required of employers in its situation and, as we have indicated, the fact is that work was done at height, and which is by its nature high-risk. 

16.      It is important that industry standards are adhered to as indeed the Defendant recognised itself by recommending a safer system of scaffolding towers to anchor the scaffold in the first place.  But its culpability is increased by reference to the fact that a section of scaffold collapsed in November, and albeit the scaffold was restored, the design was not amended.

17.      The Crown has moved for a fine of fine in the sum of £60,000 and costs in the sum £5,000.  We think that is too high.  Before we come on to the fine, we are going to impose we have also considered the absence of financial information which has been provided.  We would like to say this, we recognise that in a small community the production of financial information is sensitive.  We have had to proceed on the assumption that the Defendant is able to meet any fine which is imposed, but for the future we would like to make it plain that the provision of financial information can be treated sensitively by a court, and it would be helpful to have it.

18.      The present case calls for an assessment as to what would be an appropriate fine for a defendant when dealing with a high-risk business and a defendant who has constructed a scaffold which falls short of industry standards putting at risk health and safety, potentially not only its own employees but also other members of the public including the employees of the occupiers of the building.  Fortuitously no injuries have in fact been caused.  If injuries had been caused there is no doubt the fine we would have been imposed would have been higher, not because the culpability of the Defendant would have been any worse, but because the harm caused by its failures would be greater.  In a sense, this recognises the natural feelings or outrage in the community where harm has been suffered by passers by or employees as a result of a defendant's failures.

19.      Each case is decided on its own merits and none of what we have said so far is to say other than a substantial fine must be imposed even in the absence of injury being caused.  The Defendant cannot expect much credit for the fact that it was lucky.  Having regard to all the circumstances our view is that the appropriate penalty is a fine in the sum of £35,000 and in addition the Defendant is to pay prosecution costs in the sum of £5,000 and the defendant will have two weeks to pay.

Authorities

Health and Safety at work (Jersey) Law, 1989

R v F Howe and Son (Engineers) Limited [1999] 2 CR.App. R. (s) 37. 

AG v Bidmead [2021] JRC 239. 

AG v Sonnic Limited and Mendonca [2019] JRC 120. 

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