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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG -v- Alfa Ground Works Limited [2013] JRC 225 (19 November 2013) URL: http://www.bailii.org/je/cases/UR/2013/2013_225.html Cite as: [2013] JRC 225 |
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Inferior Number Sentencing - contravention of the Health and Safety at Work (Jersey) Law.
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Before : |
W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Crill and Milner. |
The Attorney General
-v-
Alfa Ground Works Limited
Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:
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1 count of: |
Contravention of Article 21(1)(a) of the Health and Safety at Work (Jersey) Law 1989, as amended (Count 1). |
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1 count of: |
Contravention of Article 21(1)(b) of the Health and Safety at Work (Jersey) Law 1989, as amended (Count 2). |
Plea: Guilty.
Details of Offence:
Defendant contracted to carry out ground works on construction site at Parish of St Helier Recycling Centre. An employee, Mr Costa, who was neither appropriately trained nor competent to do so, was operating a track-dumper when it overturned. During an attempt to right the over-turned track-dumper by another employee, Mr Costa sustained serious foot injuries when the track-dumper fell back onto him, trapping and crushing his foot. Defendant had inadequate controls in place to ensure a safe system of work for operating the dumper-truck (Count 1); driver had received no training and was incompetent to operate the dumper-truck (Count 2).
Details of Mitigation:
Prompt admission on Indictment. No previous convictions. Liquidators had been appointed to the defendant on 28th August, 2013, and it had ceased trading.
Previous Convictions:
None.
Conclusions:
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Count 1: |
£10,000 fine. |
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Count 2: |
£10,000 fine. |
Contribution of the Prosecution's costs in the sum of £2,500.
Total: £22,500.
Sentence and Observations of Court:
Financial circumstances indicated a nominal fine.
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Count 1: |
£50 fine. |
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Count 2: |
£50 fine, concurrent. |
Total: £100 fine.
No order for costs.
Mrs S. Sharpe, Crown Advocate.
Advocate L. Ingram for the Defendant.
JUDGMENT
THE DEPUTY BAILIFF:
1. On 18th October, 2013, the defendant was presented before the Court for sentence following guilty pleas to two charges under Article 21 of the Health and Safety at Work (Jersey) Law 1989 (the "1989 Law"). The defendant was sentenced to a fine of £100 with reasons reserved. This judgment contains those reasons.
2. On 19th September, 2012, an accident occurred at a construction site in St Helier. Mr José Costa, an employee of the defendant, sustained a serious foot injury when he became trapped under a Slane HT 1000 track dumper. The defendant was a sub-contractor undertaking demolition of a shed and some workshops. In the days leading up to the accident, its employees were excavating some foundations and levelling the ground adjacent to the north western elevation of a newly erected steel framed building.
3. The injured employee Mr José Costa was employed with his brother Mr David Costa and with Mr Jeff Dunn, a plant operator/supervisor also employed by the defendant but primarily to operate the excavator digging the foundations. There were two other employees of the defendant on site but they were working away from the others.
4. The dumper was delivered to the site on 17th September. It had been hired by the defendant and Mr David Costa had signed for it. Although there was a manual which related to the operation of the dumper, this was neither collected by Mr David Costa nor was a copy of it delivered to the site with the dumper. The manual contained some safety notes including the following:-
"2.7 Work Safely
WARNING: An unbalanced machine could overturn and cause injury or death. Make sure to following the manufacturer's recommendations regarding load capacities. Be particularly careful on uneven or sloped ground. Make sure to following (sic) the manufacturer's recommendations regarding stability on such terrain."
"4.2 Machine Stability
...
The machine can climb and decent (sic) slopes of 40% (22 degrees) with a stable packed load. The machine can move on cross slopes of 36% (20 degrees). Note at all time during transport the skip must be in the fully lowered position.
When using the "scissors" skip raising mechanism the machine must be on level ground.
During all tipping operations the machine must be on level ground."
5. As the manual had not been delivered to the site, employees had not had an opportunity to read it. Furthermore, no training had been given to employees to use this machine, although Mr David Costa had operated a similar machine some months earlier.
6. Initially it was Mr David Costa who operated the dumper, but the following day, his brother Mr José Costa took over because, he said, "it was quicker and we needed to finish the work".
7. On the day of the accident, Mr José Costa drove the dumper onto the bulk spoil heap and started to use the tipper bucket. The ground beneath the dumper was not level. He later said that at that point, when raising the tipper bucket vertically, the dumper started to "move and shake a bit". This stopped when he stopped raising the bucket. He then began to tip the bucket to empty the soil, but the dumper suddenly tipped over onto its right side. Luckily he was able to jump clear and he was uninjured. He switched the engine off and ran round the site to ask his colleagues for help.
8. Mr Dunn, on discovering what had happened, drove the excavator up to the overturned dumper with the intention of using the bucket of the excavator to right the dumper. He warned everyone to stay out of the way whilst he tried to see if he could lift it. The dumper was almost in a position to rock back onto its tracks when Mr Dunn realised it was slipping off the excavator bucket, which he was using as a form of lever. There was nothing he could do to stop the dumper falling back on its side. He shouted a warning but he then heard Mr José Costa yelling that his legs were trapped underneath it at the rear. It transpired that when the dumper was almost righted, the employees went to push it the rest of the way, but as the bucket of the excavator slipped, Mr José Costa could not get out of the way in time.
9. This was a potentially very serious accident. Fortunately it appears that Mr José Costa's injuries are unlikely to be permanent, although he may be susceptible to an early onset of arthritis. However, if the dumper had fallen over his body instead of his leg, he might have been killed. How was this avoidable? It is clear that if the dumper had not fallen over in the first place, the accident would not have happened. Even once it had fallen over, if appropriate steps had been taken to right it, the accident would not have happened.
10. Article 3(1) of the 1989 Law imposes a general duty on the employer, so far as is reasonably practicable to ensure the health, safety and welfare at work of his employees. This is expanded by Article 3(2). Article 3(2)(a) of the 1989 Law includes a duty placed on the employer to provide and maintain systems of work that are, so far as is reasonably practicable, safe and without risks to health. Article 3(2)(c) requires the provision of such information, instruction, training and supervision as is necessary to achieve the same end. Under Article 4(a) of the 1989 Law, employees involved in working activities also have a duty to take reasonable care of their own health and safety and that of anyone else who may be affected by their acts or omissions at work. This includes cooperating with requirements imposed by their employer.
11. The two charges in this case are firstly that the employer failed to discharge his duty to ensure that his employees were not exposed to risk for their safety in that it failed to provide a safe system of work for operating the Slane HT 1000 track dumper, and failed to provide appropriate information, instruction, training and supervision which would ensure the safety at work of such employees. The second charge is that the employer contravened Regulation 23 of the Construction (Safety Provisions) (Jersey) Regulations 1970, and thus contravened Article 21(1)(b) of the 1989 Law, in that it failed to prevent Mr José Costa from operating the dumper when not being trained or competent to do so.
12. It is immediately to be noted that the injury which Mr José Costa sustained did not result from his failure to be trained in operating the dumper, nor indeed did it result from the dumper overturning whilst he was operating it. The injury which he sustained was the result of getting too close to the dumper during the operation to right it. That operation could have been conducted safely. Mr Dunn could have used a properly secured lifting strop attached to the lifting lug on the excavator and the dumper, which was in fact the system adopted to right the dumper after the accident. Using the bucket of the excavator to push against the side of the dumper and effectively roll it back onto its tracks was an inherently risky way of tackling the exercise.
13. The defendant had a health and safety policy which was prepared by an external health and safety consultant, which set out a formal and structured health and safety management system. This was no doubt an admirable document, but it is not entirely clear whether the directors and employees of the defendant really paid it much attention. Mr Blandin, the owner of the defendant, was asked how he achieved the employer's responsibilities of "developing the safety management system for planning, measuring and reviewing performance and auditing health and safety" as set out in the policy. He replied "what is actually mean (sic) by that?"
14. The external health and safety consultant prepared formal contractual documentation such as risk assessments and method statements for individual contracts. The Court is left with the impression that this was something of a "tick box" approach adopted by the employer. He had formal risk assessments and method statements, but there was a disconnect between the formal documents, which no doubt appeared to meet the health and safety requirements, and the actual management responsibility for ensuring that employees - and possibly the employer - understood the detail of what the risk assessments were intended to cover. It was noted by the health and safety officers that the risk assessment and method statements relating to the site where this accident occurred made no reference to the operation of the dumper which had overturned. Accordingly the whole approach of the employer reflected a high risk strategy for managing health and safety. There was a gap between the formal risk assessment documentation and the understanding on site of what would be necessary to get the job done and what risks could be contemplated as a result. There was also a lack of training in the use of the dumper, and of any manual which would have been informative.
15. In mitigation, Advocate Ingram said that the company relied heavily on its employees to look after themselves, and it fell into the trap that sometimes besets employers, who are lulled into a false sense of security as a result of their knowledge of the experience of the people actually working on site. It is clear that the employer did not merely leave the employees to get on with the job. Mr Blandin regularly visited the site, generally on a daily basis. However his visits took the form of an informal walk around to ensure that the work was progressing as expected and that everyone was doing what they should be doing. There was certainly not a structured proactive approach to managing health and safety, notwithstanding that this was stated to be one of the objectives of the defendant's health and safety policy.
16. Advocate Ingram also very fairly made the point that an employee of the main contractor was on the site as well. He was the overall site foreman, and therefore responsible generally for health and safety on the site. There was another site manager who had previously worked for the defendant company for a number of years. This emphasised that the case was not one of a person being left to get on with the work on his own. However, the fact is that Mr José Costa was left to take charge of a machine in respect of which he had had no training, and it did overturn. Both Mr Blandin and his staff manager stated that they were unaware that Mr José Costa had been operating the dumper. Indeed the staff manager spoke to Mr Dunn after the accident and asked him what that employee had been doing on the dumper in the first place.
17. It is also a fact that no proper arrangements were put in place to supervise the flawed efforts to right the dumper once it had overbalanced.
18. This was not a deliberate or reckless breach of the Health and Safety at Work Regulations. It is not the case that there was a lack of protective action promoted by any financial motive. There was not any effort to cover up the breach of the 1989 Law, nor was the employer in any way obstructive or dismissive. The offence is not exacerbated by repeat breaches. Furthermore there was an early guilty plea, and training has subsequently taken place.
19. In our view, the problem in this case is that the employer paid lip service to the health and safety obligations not in the sense of being indifferent to them, but in the sense of simply not focussing upon the need to take practical steps to protect the employees' safety at work. This accident in itself probably was something of a freak accident and probably could not have been anticipated. Employers, however, should anticipate that accidents which cannot be anticipated are likely to happen. It behoves employers to take practicable steps, as far as they can, to anticipate that which may not be easy to anticipate. There should have been proper training before Mr José Costa was permitted to operate the dumper. Even his brother had only used the dumper once before, and he had had no training either. There should have been a requirement for those operating the dumper to see the manual, which included safety recommendations from the manufacturer. Employees on site should have realised that when something went wrong - the dumper overturning - they then faced an unusual circumstance that was out of the ordinary and proper attention should have been given to the appropriate and safe way of righting it. The employer had a responsibility to ensure that his employees requested the appropriate level of supervision and direction in that respect, and did not omit to do so perhaps from fear of their employer thinking the direction was unnecessary or from embarrassment or for whatever reason. It is this kind of change to the culture of the employer/employee relationship which the 1989 Law and regulations made thereunder are intended to address. Health and safety is not dealt with by a "tick box" mentality on the part of the employer.
20. Were it not for the financial circumstances of the defendant, to which we will shortly come, we would have imposed a fine of £5,000 on each count. Such a fine reflects the relatively minor level of injury (compared with some), the lack of foreseeability of the events which actually caused it, and the employer's culpability in not having an approach to a safe system of work which was appropriately risk focussed.
21. The summons on this case was issued on 4th June, 2013. At that time there was nothing within the prosecution papers which suggested the defendant was in any financial difficulty. However, by July it was clear that the defendant was experiencing cash flow problems, and on consulting its accountants, the Board of Directors was advised that the company should be placed into liquidation and a liquidator was appointed. On 28th August, 2013, at an extraordinary general meeting, the directors proposed a creditors winding up and the requisite resolutions were carried. It is unclear at present whether there will be any funds available for preferred and/or unsecured creditors.
22. Any fine which the Court imposes will rank as an unsecured debt. In practice, the imposition of the fine will not hurt the defendant, because it will cease to exist. It will hurt the defendant's creditors, who carry no responsibility at all for the health and safety obligations of the defendant as an employer. When the Court says, as it often has, that fines for breaches of the 1989 Law and Regulations, it is clear that there is no justification for stinging the creditors of a company in liquidation.
23. Advocate Ingram points out that, in the United Kingdom, leave from the Court is required to bring criminal proceedings when a company is in the course of a creditors winding up, by virtue of Section 11(3)(b) of the Insolvency Act 1986. The question as to whether "other proceedings" in this section extended to criminal proceedings was considered in Re Rhondda Waste Disposal Limited [2001] CH 57, where the Court of Appeal decided that the natural and ordinary meaning of the words included criminal process.
24. In that case at first instance the judge had held that no leave would be given to the commencement of criminal process and in overruling his exercise of discretion, Scott Baker J said this at paragraph 42 of his judgment:-
25. Robert Walker LJ said this at paragraph 55:-
26. Although we understood from Advocate Ingram's submissions that there was no equivalent to s11(3)(d) of the Insolvency Act 1986 - and in fairness to him we may have misunderstood his submissions in that respect - Article 159(4) of the Companies (Jersey) Law 1991 (the "Companies Law") provides as follows:-
27. A similar provision is often inserted into orders which the Court makes for a just and equitable winding up under Article 155 of the same legislation, by adding a provision that no proceedings are to be commenced against the company without leave of the Court.
28. Article 159(4) of the Companies Law therefore needs to be construed in the instant case. Does "action" include a prosecution of the company by the Attorney General? If it does, then it follows that the Court's formal leave to continue the prosecution is needed. If it does not, then there may be a question to be considered in relation to the public interest in the prosecution continuing.
29. The word "action" is not defined in the Companies Law. There is thus no assistance to be given from the interpretation provisions in that legislation. We have looked at the Interpretation (Jersey) Law 1954. There appears to be nothing in that legislation which is of assistance. We note from Article 15(1) of the Royal Court (Jersey) Law 1948 that the powers of the Bailiff are described in this way:-
30. It would seem that as a matter of grammar, the word "criminal" in that Article qualifies both causes and matters. That would seem to suggest that if one can assimilate the words "Action" with either a "cause" or a "matter", then there is no reason in principle why a criminal matter should not be subsumed within the word "action".
31. The word "action" has been construed in three cases which have been considered in this jurisdiction. In re Carlston [1996] JLR N 2, it was held that an application for a declaration of désastre was not an action within the meaning of the Royal Court Rules 1992, and could not be withdrawn or discontinued under what was then Rule 6/24.
32. In Mayo Associates SA-v-Cantrade Private Bank Switzerland (CI) Limited [1997] JLR N 3, the Royal Court found that a representation issued in that case should not be treated as a separate "action" as it was effectively part of the on-going proceedings. Accordingly it was not possible to place that representation separately on the pending list under Rule 6/7 of the Royal Court Rules 1992.
33. A few years before that in Finance and Economics Committee-v-Bastion Offshore Trust Company Limited [1994] JLR 370, the Court of Appeal had had to consider whether the Royal Court was right in holding that Part 6 and 11 of the Royal Court Rules 1992 were not mutually exclusive, and therefore whether it was possible to make an order for further and better particulars in an administrative appeal. The Finance and Economics Committee argued that an administrative appeal was not an "action" for the purposes of Part 6. On that point, Sir Patrick Neill JA said this at page 380, line 23:-
34. It is clear from this extract that the Court of Appeal construed the word "action" in what were undeniably civil proceedings in a relatively wide way - and would have so decided had it been necessary - so that what the Rules describe as an "appeal" would in fact have been treated as an "action".
35. That is the extent of the learning in the previous decisions of the courts of Jersey on the question of what constitutes an action, as far as one can tell.
36. The extract from the Court of Appeal judgment in Bastion contains the reference to Section 151(1) of the Supreme Court Act 1981. We note that in the British Law Ascertainment Act 1859, Section 5 defines "action" as including "every judicial proceeding instituted in any court, civil, criminal, or ecclesiastical". We also note that in s 147(1) of the County Courts Act 1984, "action" is defined to mean "any proceedings in a county court which may be commenced as prescribed by plaint".
37. In Bradlaugh-v-Clarke (1883) 8 App Cas 345 at 361, Lord Selbourne LC said the word "action" "is ... a generic term, inclusive in its proper legal sense, of suits by the Crown".
38. In Herbert Berry Associates Limited-v-Inland Revenue Comrs (1978) 1 All ER 161 at 170, Lord Simon of Glaisdale said:-
39. This definition was cited by the Royal Court with approval in Heerema-v-Heerema [1985-86] JLR 293 at page 298.
40. It is apparent from the foregoing that these various dicta or citations do not all point in the same direction. In re Carlston (supra), the Royal Court said that "we can see that an action is something that is commenced by a summons". That test may sometimes be helpful although we do not think it takes us far in this case. It is true that civil proceedings are often commenced by summons, whether the summons be a document signed by the plaintiff or his advocate, or a document served by the Viscount when an order of justice is served with an order convening a defendant before the Court. But it is also true that criminal, or at least quasi criminal, proceedings are commenced by summons. The present proceedings were commenced by summons. Applying this test, the present proceedings would be an "action" for the purposes of Article 159(4) of the Companies Law. Notwithstanding this dictum we are inclined to take as a starting point that lawyers would generally use the word "proceedings" or the word "process" to include both civil and criminal proceedings or process, but, generally speaking, one would use the word "action" to describe civil process rather than criminal process.
41. However, we think it is right to apply a purposive construction to this particular provision. The Article in question appears in Chapter 4 of Part 21 which deals with creditors' winding up. Article 159(2) provides that the corporate state and capacity of the company continue until the company is dissolved, and the dissolution is not complete until the winding up had been completed and there has been a final meeting. It is clear therefore that Article 159 contemplates that the company continues to have capacity - to sue and to be sued - until dissolution has occurred.
42. What then is the purpose of sub-paragraph (4) of this Article? It must be to ensure that the Court retains control over the use of its process in connection with the company which shortly will no longer exist, and which, by the nature of a creditors' winding up is likely to leave some creditors receiving less than 100 pence in the pound in respect of their claim. We consider that the vice against which Article 159(4) is a protection is the wasting of time of the Court and of the liquidators in those cases in which there is no public interest or public advantage in the continuation of the proceedings. Accordingly, we are minded to give the word "action" in Article 159(4) a wide construction and say that it includes steps taken in both civil and criminal proceedings.
43. When the instant case was first called before the Royal Court on 6th September, Clyde-Smith, Commissioner, adjourned the prosecution requesting that the Attorney General give consideration to whether a continuation of these proceedings was in the public interest. The Attorney, whose decision to prosecute always should include consideration of the public interest, has taken the approach that the prosecution of this defendant was and is in the public interest whether the defendant has sufficient assets to pay a fine or not. The fact of prosecution highlights the significant duties placed on employers who, if they fail to take reasonably practicable steps to avoid risk of harm, will suffer the consequences by way of a fine under the 1989 Law.
44. Although the matter was not in terms argued before us in this way by Crown Advocate Sharpe, because indeed neither counsel focussed on Article 159(4) of the Companies Law, we conclude that what she was really contending was that leave ought to be given by the Court for the continuation of the proceedings under Article 159(4) because it was in the public interest to highlight the obligations imposed upon employers by the 1989 Law. We endorse that approach, and therefore we give leave to the Attorney to continue these proceedings. If we had not taken the view of Article 159(4) that we have so that no leave was required, we would have concluded that the Attorney took a wholly legitimate approach in his assessment of the public interest.
45. Equally, in deciding what fine to impose, the Court should have regard to the means of the defendant as is the normal rule, and should certainly not impose a fine which effectively will have to be met by those who are innocent of wrongdoing, in this case, the creditors. In the circumstances we have taken the view that it is right to indicate the fine that we would have imposed, had the defendant company had the wherewithal to pay a fine, but as it is clear it does not, a nominal fine of £100 has been imposed instead, with no order as to the costs of the prosecution.
