Jersey Unreported Judgments

Inferior Number Sentencing - Health and Safety Infraction

[2019]JRC044

Royal Court

(Samedi)

22 March 2019

Before     :

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

The Attorney General

-v-

K-LOK Scaffolding Limited

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

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:

K-LOK Scaffolding Limited ("K-LOK") was sub-contracted to erect scaffolding at 13-15 Castle Street, St Helier.  The planned scaffold consisted of 9 levels of working platforms and the scaffolding was to be erected on the pavements of Castle Street and Commercial Street. 

 

K-LOK applied for a scaffold permit, however a section which dealt with the safety of pedestrians and closure of footpaths was left blank.  The scaffolding permit was issued a day after the work had begun.  

 

The first and second lift on Commercial Street, the semi-circular section around the building entrance and three bays on Castle Street (a bay is the length of one section of scaffold) were erected.   During work on the third scaffold lift, a one board support fell from the scaffold onto the pavement below, which was a distance of approximately 6.5 metres.  A one board support is a short length of scaffold tube, which is 290mm in length and weighs 1.5 kg. 

 

Later that day the Health and Safety Inspectorate ("HSI") received a telephone call from a member of the public.  They said that a piece of scaffolding had dropped just centimetres in front of their eyes onto the pavement of Castle Street.  The person indicated that there was no cordon to prevent pedestrians walking near the scaffold.  Another member of the public reported the incident the same day, describing how a piece of scaffolding had narrowly missed a female pedestrian who was "very shocked and on the verge of tears".

 

A HSI inspector attended the site where it was admitted that a piece of scaffolding had fallen the previous day.  The inspector discussed safe systems of work with the site supervisor, including working outside of peak hours and closure of the pavement below the scaffold. 

 

HSI were informed later in the day by a member of the public that a tool had landed on the pavement "within 10 feet" of them, as they had turned the corner from Commercial Street onto Castle Street.  A HSI Inspector again attended, and was told by the site supervisor that he was not aware of anything falling from the scaffold.  It was later established that the site supervisor had lied and the ratchet had fallen from his belt.

 

After a report of a third incident, a prohibition notice was served on the company.  It is accepted that in relation to this incident there were no failings on behalf of the defendant and therefore it did not form part of the infraction that the defendant was sentenced for.

Details of Mitigation:

Good safety record, the offending did not arise as a result of cutting corners, remorse, the company will undertake proper health and safety assessments for future projects. 

Previous Convictions:

None.

Conclusions:

Count 1:

£30,000 fine.

Prosecution costs sought in the sum of £3,000. 

Sentence and Observations of Court:

The Court found it was a serious breach, and the company fell substantially short in its duty.  Scaffolding is a high risk activity with a risk of serious or fatal harm

Conclusions granted.

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

Advocate O. A. Blakeley for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        The defendant company is to be sentenced for an offence under Article 21(1)(a) of the Health and Safety at Work (Jersey) Law 1989 by failing to comply with its duty under Article 5(1) to conduct its undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in its employment who may be affected thereby are not exposed to risk to their health and safety. 

2.        The defendant company was erecting scaffolding in Castle Street, a very busy pedestrian thoroughfare, when on two occasions first, a short length of scaffolding tube and secondly, a ratchet spanner, fell some considerable distance to the pavement below narrowly missing pedestrians. 

3.        The particular failings of the defendant company were:

(i)        The application for the scaffolding permit submitted by the defendant company left entirely blank the sections which specifically deal with how the safety of the pedestrians was to be ensured.

(ii)       Whilst a risk assessment and method statement was prepared it was not specific to this project and could in fact apply to any site.

(iii)      The erection of the first three lifts and the protection fan should have taken place outside busy periods and not at the height of the working day.

(iv)      The Castle Street pavement should have been closed to the public using physical hard barriers which directed the flow of pedestrian traffic either under the scaffold lift or to the opposite pavement.

(v)       Once the first incident occurred there was no detailed review of working practice to ensure compliance with the suggestions of the Health and Safety Inspector.

4.        Although there was a no comment interview by the director and beneficial owner, and the infraction was initially denied, the defendant company has put forward a basis of plea that has been accepted.

5.        The defendant company has been established since 2005 and has a good safety record and the prosecution accept this is not a case of the defendant company deliberately cutting corners to maximise profits.

6.        The Court has been referred to the case of AG v Jubilee Scaffolding Company Limited [2010] JRC 209B which involved a similar breach, although in that case the pedestrian was struck by a scaffold pole and broke her collar bone, from which she made a complete recovery.  The defendant company there was fined £25,000 and £2,000 costs.  As the prosecution point out that was some nine years ago and the general level of fines for these offences has since increased. 

7.        The Court was also referred to the English Court of Appeal decision of R v F Howe & Son (Engineers) Limited [1999] 2 CR App R (S) 37, whose approach has been routinely followed by the courts.  However, in AG v Petroleum Distribution (Jersey) Limited [2018] JRC 190 the Court decided not to follow the very much 'tick box approach' in the English sentencing guidelines, although the culpability and harm factors referred to in those guidelines are helpful.

8.        We have considered the very succinct mitigation plea by Advocate Blakeley and we accept that Mr Campbell the beneficial owner of the defendant company is genuinely remorseful for what has happened and that steps have been taken to ensure that proper risk assessments are now prepared for every project.

9.        However, we agree that following the Howe principles the conduct of the defendant company overall did fall substantially short of the appropriate standard and that this is a serious breach of the law which is concerned with exposure to risk.  Erecting scaffolding is a dangerous activity and this scaffolding was being erected in one of the busiest streets of St Helier during working hours.  Heavy objects falling from a height could cause serious, if not fatal, injury and it was just luck that no pedestrian was struck.  In our view the risk of serious if not fatal harm was high.  There was also a failure not to head the warnings of the Inspector fully after the first incident.

10.      The prosecution seeks a fine of £30,000 and costs of £3,000, and the accounts of the defendant company show that it has the means to meet such a penalty although we accept with the information given to us by Advocate Blakeley that it would need time to pay.  As made clear in the case of Howe , the objective of prosecutions for health and safety offences in the work place is to achieve a safe environment for those who work there and for other members of the public who may 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.  Any fine should reflect not only the gravity of the offence but also the means of the offender.

11.      We are therefore going to grant the conclusions of the Crown and impose a fine of £30,000 and order costs of £3,000, but we give the defendant company 12 months in which to pay.

Authorities

Health and Safety at Work (Jersey) Law 1989

AG v Jubilee Scaffolding Company Limited [2010] JRC 206B. 

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

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