Jersey Unreported Judgments

Inferior Number Sentencing - Health and Safety Infraction.

[2019]JRC019

Royal Court

(Samedi)

8 February 2019

Before     :

T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Ramsden and Thomas.

The Attorney General

-v-

Nunes Gardening and Maintenance Limited

Sentencing by the Inferior Number 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:

The company is a small gardening company, which at the time of the incident was operating with two employees.  The company provided general gardening services mainly to private householders. 

 

The property at which the incident occurred sits at the top of a cliff, which in turn slopes steeply down to a pebble beach approximately 25 metres below.  The property has a patio area to the northern aspect, which is fenced off from the cliff face.  There is a gate, which provides access to a very narrow path at the cliff top.  On the day of the incident, the employee attended at the property to carry out general maintenance and gardening tasks as per usual.  The employee had attended at the address approximately 15 times previously. 

 

On arrival at the property, the owner asked the employee to trim a bush back, which is close to the cliff tip.  The employee completed the task from trimming the bush from both the garden side and the cliff edge.  After trimming the bush the employee discovered a dead plant near to it, bent down, and pulled it out of the ground.  As the plant worked free he lost his balance and fell backwards over the cliff head first, striking his head as he fell. 

 

A major rescue operation was commenced to recover the employee from the beach.  The employee was transferred into a stretcher and moved to an inshore rescue boat before taken to Bonne Nuit harbour where he was transferred to hospital by ambulance. 

 

The employer had a duty under Article 3(1) of the Health and Safety at Work (Jersey) Law 1989 ("the Law") to conduct its undertaking in such a way as to ensure so far as is reasonably practicable that employees are not exposed to risks to their health or safety.  There had been no risk assessment undertaken at the property at all.  Neither was there a safe system of work in place for the Property.  On the day of the accident, there was also no supervision in place. 

 

The company failed to comply with Article3 (2)(aa) of the Law as it failed to assess the risks to health and safety to which their employees were exposed at work.  It failed to carry out adequate risk assessments of the gardening duties such as risk of falling from the cliff edge to the beach below. 

 

In failing to provide instruction, information, training and supervision as was necessary to ensure so far as is reasonably practicable the health and safety at work of the Company's employees the company failed to comply with Article 3(2) (c) of the Law.  In addition, in allowing the employees to undertake tasks outside the perimeter of the Property, the Company failed to comply with Article 3(2) (a) of the Law.

Details of Mitigation:

Guilty plea of the first appearance, cooperative and not a case of cutting corners to maximise profits. 

Previous Convictions:

None. 

Conclusions:

Count 1:

£25,000 fine.

Costs order sought in the sum of £3,000.00.

Sentence and Observations of Court:

Count 1:

£15,000 fine.

£2,000 to be paid within 7 days.

£500.00 per month to be paid thereafter until payment of the fine is completed.

No costs ordered.   

Total: £15,000  

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

Advocate A. M. Harrison for the Defendant Company  .

JUDGMENT

THE DEPUTY BAILIFF:

1.        On the 16^th May, 2018 an employee fell 25 meters down a cliff face when trying to pull out a dead plant during the course of gardening duties carried out at a property whilst he was working for the Defendant Company.

2.        His fall occasioned a major rescue operation and he was eventually taken by inshore rescue boat and transferred to hospital by ambulance.  There had been no risk assessment, nor was there a safe system of work in place.  Given the location of the property at the top of a cliff this was clearly a matter of importance. 

3.        He was not supervised, in effect the employee worked alone and we note that safety had not been mentioned on that occasion to him, or indeed at other times so the employee says, when he had worked at the property. 

4.        We do not know, however, how often in the past he had worked on the cliff edge as most of the work was usually inside the fence.  The employee suffered life changing injuries, he sustained a broken spine and is paralysed from the waist down.  The consequences of this were catastrophic.

5.        We agree with the Crown that the company fell substantially short of the appropriate standard, but we do not think that we can say with any certainty that the employee was exposed to this risk for prolonged periods because we simply do not know how often he worked on the cliff edge.  But the company should have identified and assessed the risks inherent in working in a property in that location and the risk inherent in cliff top operations are of course quite obvious. 

6.        We accept that there has been no prior warning given to the company and working on that day was not an attempt to increase the profits of the company.  We also note that both the company and its owner, Mr Nunes, were entirely cooperative with the investigation.  There are no relevant previous convictions.

7.        We have of course, noted the mitigation available to the company specifically its early admission of failing, and we have also noted on the information provided to us that the staff of the company have now undertaken courses in connection with health and safety, and we are informed through counsel there are more such courses in the offing and therefore we are able to conclude that the company has taken steps to improve its safety position. 

8.        We have had regard to the example cases put before us and to the accounts of the company.  We have had regard to the latter not to assess the appropriate sentence but to reflect the fact that having assessed the sentence we should treat the financial standing of a defendant and its ability to pay as potentially reducing what would otherwise be the appropriate sentence and to that end we respectfully adopt the court's observations in the Attorney General v Petroleum Distribution Jersey Limited [2018] JRC 190 paragraph 21 when the Court said:-

"21.    In our judgment, the proper approach is for the Court to take into account the financial circumstances of the offender to reduce what would otherwise be a proper fine, where it is appropriate to do so - perhaps taking into account the ability to pay, perhaps taking into account the need to preserve the company's business and the employment of employees within it; or not, as the case may be.  That is a judgment for the Court in relation to the particular circumstances of the case before it.  Those financial circumstances, however, have not been taken into account previously to increase what is a proper fine to something which is not.  In our judgment, the English Sentencing Guidelines do not reflect this principle, and in this respect are an unwelcome development of the approach taken in R v Howe.  We decline to adopt them."

9.        The court also made observations in paragraph 19 and 20 of the judgment relating to increasing the levels of sentencing for such an offence overall.  This, we accept is based upon the general principle that fines in connection with these sorts of breaches are intended to sting because it must be clear to others that they have an obligation to make their working environment safe for their employees and appropriate fines must reflect the need to reinforce this. 

10.      However, in the light, particularly of the financial circumstances of the company, we think that the conclusions moved for by the Crown are too high.  We are concerned that were we to impose a fine at that level, not only would it be almost impossible for the company to discharge that burden but the future of the company in a financial sense would be at risk. 

11.      We have obviously had close regard to the financial information but also heard through counsel as to the surrounding financial circumstances of Mr Nunes and that reinforces the view that we have taken. 

12.      Accordingly, in the circumstances of this case, we impose a fine of £15,000, we direct that £2,000 is to be paid within 7 days and that £500.00 per month must be discharged thereafter until the payment of the fine.  We give however liberty to apply in the event that this proves to be an impossibility.  In the circumstances we make no order for the payment of costs. 

Authorities

Attorney General v Petroleum Distribution Jersey Limited [2018] JRC 190. 

Health and Safety at Work (Jersey) Law 1989 

AG v R&M and SFS [2011] JRC 139

AG v Horgan and Unit 6 Joinery Limited [2018] JRC 040

AG v De Castro [2018] JRC 082

Sentencing Council, Health and Safety Offences, Definitive Guidelines (extract)

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