Jersey Unreported Judgments

[2011]JRC139

Royal Court

(Samedi)

15 July 2011

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Tibbo and Nicolle.

The Attorney General

-v-

R & M Sprinkler Installations Limited

SFS Fire Services Limited t/a Hall and Kay Fire Engineering

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

R & M Sprinkler Installations Limited

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:

A major construction project at Energy from Waste Plant at La Collette with a total contract value of £98.66m included the installation of a fire protection and detection system.  Hall & Kay were appointed by the main contractor, Mitie; Hall & Kay sub-sub-contracted to R & M.  During the course of a lifting operation involving a 6.4 metre length of pipe weighing 130 kilos, one of R & M's operatives sustained serious leg injuries when the pipe slipped and fell on his leg.  The method by which the pipe had been slung to the chain block was totally inappropriate and inherently unsafe.  The four R & M operatives involved lacked appropriate information, instruction, training and supervision and were using an unsafe system of work.  No risk assessments had been carried out by R & M or Hall & Kay prior to the lifting operation.  However, both companies stated they had not anticipated that the experienced R & M operative would proceed with the work and would make such a poor decision regarding the method of lifting without first seeking guidance.  However, R & M had no presence on site and supervision by Hall & Kay was limited.  R & M relied on Hall & Kay to perform much of its role as employer, but these statutory duties are non-delegable.  Hall & Kay failed to have appropriately robust measures in place to ensure the safety of its sub-contractors. 

Details of Mitigation:

Both defendant companies: prompt admission of liability; good character; co-operation with investigation.  Both companies indicated that the R & M operative was performing a job which he was not supposed to do without proper guidance and supervision.  R & M submitted financial information indicating company in very parlous circumstances. 

Previous Convictions:

None. 

Conclusions:

Count 1:

£20,000 fine.

Costs order in the sum of £2,500 sought.

Total:  £22,500. 

Sentence and Observations of Court:

Count 1:

£10,000 fine.

Costs order in the sum of £2,500 made.

Total:  £12,500.  Time in which to pay - 3 months.

SFS Fire Services Limited t/a Hall and Kay Fire Engineering

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:

See R & M above. 

Details of Mitigation:

See R & M above. 

Previous Convictions:

None. 

Conclusions:

Count 1:

£15,000 fine.

Costs order in the sum of £2,500 sought.

Total:  £17,500

Sentence and Observations of Court:

Count 1:

£10,000 fine.

Costs order in the sum of £2,500 made.

Total:  £12,500.  Time in which to pay - 2 weeks. 

Mrs S. Sharp, Crown Advocate.

Advocate W. A. F. Redgrave on behalf of R & M.

Advocate C. J. Dorey on behalf of Hall & Kay.

JUDGMENT

THE DEPUTY BAILIFF:

1.        SFS Fire Services Limited trading as Hall & Kay Fire Engineering are charged with an infraction under the Health and Safety at Work (Jersey) Law 1989, as amended, in that they did not, so far as reasonably practical, conduct their undertaking in such a way as to ensure their persons not in their employment were not exposed to risks to their safety.  The essential thrust of the prosecution case here is that they took inadequate steps to plan, manage and control the works, which I will come on to in more detail in a moment. 

2.        R & M Sprinkler Installations Limited were the sub-contractors of Hall & Kay Fire Engineering and they are charged under the same piece of legislation although under a different Article, with failing to identify and assess the risks to health and safety of employees and not drawing up a proper scheme of work to ensure that the employees had a safe system of work and indeed failing to ensure adequate information, instruction, training, and supervision.  Both companies admit the charges. 

3.        The facts which lead to these charges are that on 18^th May, 2010, whilst work was being carried out on a valuable sub-contract which had been given to Hall & Kay Fire Engineering and a sub-sub-contract then on to R & M Sprinklers, a vertical piece of pipework known as a "riser" was lifted on some chains which slipped, and dropped and, as a result of the fall of this pipework, caused injury to Mr Paul O'Farrell.  He sustained serious injuries to his leg, nasty multi-fragmented fractures to the right knee and lower thigh area which required surgical fixation the following day under general anaesthesia using plates and screws.  Fortunately he appears to have made a reasonable recovery from this incident and has been able to return to work, albeit perhaps not in the same way as previously, but we note that the medical report suggests that he may well suffer from early onset osteoarthritis affecting the right knee in the future. 

4.        Mr O'Farrell was one of four employees in the area where the piece of pipe fell.  It was fortunate that he was not more seriously injured; it was fortunate that the other employees were not more seriously injured; the accident could have had much more serious consequences, indeed could have had a fatal consequence. 

5.        What the Court is required to do, in looking at offences of this kind, is to assess the standards which have been applied by the employers to questions of health and safety against the obligations which are set out in the legislation.  It is important to emphasise that the statute places significant duties on employers to have regard to health and safety so as to ensure, as far as possible, that the employees can go about their business without having their life and health placed at risk.  We note and agree with the comment made by this Court in the case of AG-v-Hamel Brothers Limited and The Jersey Royal Company Limited [2010] JRC 080 where the Court said this:-

"We wish to reiterate that fines for serious breaches of the law where the lives of employees have been placed at risk should sting, both to punish what are grave infractions and to encourage other employers to heed their obligations.  Applying the principles of the English Court of Appeal case of R-v-F Howe and Son (Engineers) Limited [1999] 2 CrAppR (S) 37 which has been applied many times in this Court, we think that fines of or even exceeding £50,000 would not be out of place, even where the infractions have been admitted."

So those remarks of the Royal Court in the case of Hamel Brothers Limited and The Jersey Royal Company Limited place in context the seriousness with which the legislation must be applied by the Court in ensuring that employees are protected, sometimes even against their own foolish acts.  As against that it is important to have regard to the facts which are relevant of course in every particular case.  You have the general statement of policy which the legislation embodies and against that the particular facts and I now take each of the two companies separately. 

6.        First of all in relation to Hall & Kay, the Court is quite satisfied that the company is a reputable company which has a good record of caring for its employees in health and safety matters, and that it has, generally speaking, a good system in place and takes health and safety seriously.  The Court is also satisfied that, as a result of the accident which occurred here, the company has taken what went wrong seriously and has put in place revised structures which are intended to avoid that happening again.  The Court accepts also that the fact of this prosecution and conviction will, for Hall & Kay, be something of a penalty in itself. 

7.        As far as R & M Sprinklers Limited are concerned, we think that the company which is a very small company, at the time of the accident employing only four people and now employing only one person, was not unreasonably placing some reliance on its main contractor, Hall & Kay, in the light of the experience which Hall & Kay had and the size of that company, and indeed in the light of the regular trading pattern between the two companies.  We also note that R & M Sprinklers had sent the site supervisor in this case on a training course shortly before this sub-contract was taken on and that to some degree that reflects the intention of R & M Sprinkler Installations limited to ensure the safety of the employees.  We think R & M Sprinklers might also have taken some comfort from the fact that the project manager was expected to attend on site on a weekly basis, and indeed we note that R & M have continued to employ the person who was injured. 

8.        As against that there is the failure which has occurred to envisage what can go wrong where employees in good faith try to assist their employers and proceed with work that has not been properly planned at the time that they take those steps.  Balancing all these things together, we think that the right course is to reduce the conclusions which have been moved for by the Crown on this occasion and we propose to impose a fine of £10,000 for each of the two accused on the charges brought against them, together with costs against each of the two accused companies of £2,500 each.

9.         We add that we have in that connection considered the financial situation of R & M Sprinklers Limited.  It clearly is not a good situation.  Nonetheless we think the fine is the appropriate fine to impose and we do not take the view that the fine will be sufficient by itself to cause this company to go into liquidation.  If it were to do so then it will not survive anyway and we think therefore that it is appropriate not to reduce the fine which ought to be imposed given the seriousness of the offence with which it is charged, simply for the reason that it is suffering at the moment a cash flow difficulty. 

10.      We give Hall & Kay two weeks in which to pay and R & M three months in which to pay. 

Authorities

Health and Safety at Work (Jersey) Law 1989.

AG-v-Hamel Brothers Limited and The Jersey Royal Company Limited [2010] JRC 080.

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