Jersey Unreported Judgments

Inferior Number Sentencing - Health & Safety

[2021]JRC310

Royal Court

(Samedi)

3 December 2021

Before     :

R. J. MacRae, Esq., Deputy Bailiff, and Jurats Crill and Dulake

The Attorney General

-v-

Jersey Road and Driveway Repairs Limited

Sentencing by the Inferior Number of the Royal Court, following an admitted 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:  Admitted. 

Details of Offence:

On 5^th February 2021, the Company allowed the Director and sole shareholder of the Company to operate a telehandler fork-lift without appropriate training.  As a result, an employee was seriously injured, breaking his leg in two places, after he was hit and run over by the fork-lift as it was being reversed.

 

The site had been set up in such a way that it would have been dangerous to operate any mobile machinery in the area.

 

There were no risk assessments in place in relation to either the telehandler or the site.

 

When the Director of the Company was questioned on the day of the incident, he lied to the Health and Safety Officer, blaming another employee for the incident, and stating that there would be no CCTV of the incident, when in fact there was a camera pointing directly at the scene.  The Director subsequently contacted the HSI to admit the truth.

Details of Mitigation:

The Company did not cooperate with the HSI during this investigation as the Director deliberately mislead the HSI on the day of the incident.  The Company provided a prepared statement at interview but declined to answer further questions.

 

The Company admitted the infraction at the first appearance before the Royal Court.

Previous Convictions:

The Company had not appeared before the Court for Health and Safety infractions previously.

Conclusions:

Count 1:

£80,000 fine.

The Crown seek a contribution to prosecution costs in the sum of £5,000.

Sentence and Observations of Court:

Count 1:

£60,000 fine.

Order made for £20,000 to be paid within 28 days and thereafter at a rate of £5,000 per month.

Costs in the sum of £5,000 ordered.

C. R. Baglin, Esq., Crown Advocate.

Advocate M. P. Boothman for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The Defendant falls to be sentenced today for a serious health and safety offence, to which it has pleaded guilty.  On 5^th February 2021, the Health and Safety Inspectorate was called to the Company's head office and work yard in St Peter where an employee had been struck by a reversing vehicle, akin to a forklift, called a Telehandler and sustained serious injury.

2.        At the scene the Health and Safety Inspectorate representative spoke to Mr Salgado about what had happened.  Mr Salgado lied.  He was and is the Director and sole shareholder of the Company.  He said another employee, who was there at the time, had been driving the forklift at the time of the accident.  He lied because that employee was the only person whom he employed who was trained to operate it.  In fact, Mr Salgado, and the whole incident was captured on CCTV, had loaded the forklift with 1.3 tons of stone and then reversed the forklift down a rough track which was wet and muddy, lost control of the vehicle and collided with an employee, Mr Dos Santos who suffered severe injury.  It is worthy of note that there were other employees in the vicinity at the time who were able to leap clear of the out of control forklift.

3.        On 9^th February 2021, the Company, through a consultant, admitted the Mr Salgado had been the operator of the forklift telhandler at the time.  A week before the incident the only trained employee who was able to use a forklift told Mr Salgado that it was, "dangerous to be using the forklift truck in the yard".  No risk assessment had been carried out in respect of the risks of using the telehandler on the site.  In interview, Mr Salgado made no comment, but produced a prepared statement in which he accepted he had no formal training in the operation of the vehicle.  He knew that he needed to be trained and that the Company had inadequate systems and procedures in place to ensure the safety of Mr Dos Santos. 

4.        Mr Dos Santos was taken to hospital.  X-rays revealed a displaced spiral fracture of the tibia and a comminuted fracture of the fibula.  The consequences of the injury have been serious as so far as he is concerned.  He has had to move house because of his financial situation.  He is unable to go fishing or to the park with his son and grandsons.  Is unable to financially help his family, his wife is working, in his words  "all day and night to pay the rent and the bills, the water, the electric the food".  He is having to sell his motorbike because he is unable to use it.  He is unable to carry out DIY because he cannot get down on his knees, and he is now living on incapacity benefit because he is unable to work and recovering very slowly.

5.        The prognosis for him is uncertain.  His left leg is now two centimetres shorter than the other one and he has no balance at all.  In December 2021he had to go to Manchester for a further evaluation of his leg and the results of that will apparently be disclosed to the Company's insurance company.  Every aspect of his life has been affected and he is doing his best in difficult circumstances to concentrate on recovering and getting on with his life and that of his family.

6.        We agree that the culpability of the Company for this offence is high.  The sole Director of the Company drove this forklift in the full knowledge that he was entirely unqualified to do so.  He did so deliberately and for no good reason.  The Company had put in no measures to prevent this accident.  The risk of serious harm was high, and the likelihood of such harm was high, because the consequences were foreseeable.  Further, the number of people put at risk of harm was high and the actual harm caused was serious.  Accordingly, this is a very serious offence. 

7.        We have had regard to the Company's means.  In accordance with authority, the fine imposed by the Court should meet the Court's assessment of the Company's culpability, the assessment of the risk of harm, the likelihood of harm and, where appropriate, the consequence in terms of actual harm done, which was significant in this case.  Finally, of course the fine should sting, in that it should bring home to the shareholders of the Company, in this case the person responsible for incident, the severity of the Company's conduct. 

8.        In these circumstances we impose a fine of £60,000 and £5,000 costs.  The first £20,000 is to be paid within 28 days of today and the balance including the costs is to be paid at a rate of £5,000 per month thereafter.

Authorities

Health and Safety at Work (Jersey) Law, 1989, as amended.

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AG -v- GMK Construction Ltd [2021] JRC 114

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

English Sentencing Guidelines