[2005]JRC146

ROYAL COURT

(Samedi Division)

21^st October 2005

The Attorney General

-v-

SGB (Channel Islands) Limited

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

Plea: Guilty.

Details of Offence:

SGB had purchased a vehicle lift second-hand in 1988 from RPB.  It was installed by SGB engineers in their workshop at Rue de Prés.  In 2004 it became apparent that the lift needed some repairs and it was decided to take it out of service in December 2004.  Whilst carrying our necessary repairs, it was decided that it was also an opportune moment to move and reposition the lift some 12 to 14 inches away from an internal staircase which restricted space and caused difficulty when removing vehicle wheels.  The original intention was to move the lift with the vehicle ramps in the lowered position.  However, the ramps had been raised in order to remove faulty seals for the hydraulic cylinders, located beneath the ramp, and when the replacement seals arrived, they were not the right size.  The three SGB engineers decided nonetheless to proceed with the plan to move the lift and did so with the vehicle ramps in the highest position, supported only by mechanical means, i.e. locking pins at each end of the cross beams of approximately 20 cms length, resting on the locking profiles in each of the four corner posts.  They did not have an installation manual for the lift and no written risk assessment was carried out.  The move was carried out using two fork lift trucks “shuffling” the lift little by little over a period of some hours.  The following day, it was necessary to level the four corner posts by inserting metal “shims” underneath the posts.  It was later established that the corner posts only needed to be tilted less than 1 degree out of verticality for the locking pins to fail and the crossbar to collapse.  Whilst one of the engineers, an employee of SGB, was crouching on the ground attempting to level a corner post by inserting a “shim” underneath it, the crossbeam collapsed, falling on his head and causing his instant death.

Details of Mitigation:

The offence was not wilful; a timely guilty plea was entered; the staff had all been traumatised by the accident; the company had a good safety record and took safety procedures seriously.

Previous Convictions:

Minor motor offence in 2001; two previous Health and Safety convictions in 1990 and 1992.

Conclusions:

£50,000 fine and £3,000 costs.

Sentence and Observations of Court:

Conclusions granted.  Defendant Company allowed 28 days to pay.

Mrs Sally Sharpe, Crown Advocate.

Advocate B.H. Lacey for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        This was an horrendous accident which led to the death of one workman and could have led to two deaths.  We agree with Crown Advocate Sharpe, who has outlined in every detail the cause and effect of this tragic accident.  We agree with her when she says that whilst there is no suggestion of wilful default there was an inappropriate and unsafe system of work used to move this lift.  Of course, there has been extreme trauma to those who were involved, but in our view this accident could have been avoided.

2.        The Company has an enormous turnover, but there is no suggestion that risks were run in order to increase the profits.  No mechanical defect has been identified to have caused the accident, but less than one degree of movement at the bottom of the post could, and did cause it.  This, in our view, makes the system of work used to move and re-position the vehicle into its new position inherently unsafe.

3.        There was apparently no installation manual for the exercise but in any event, Crown Advocate Sharpe has stated in her careful review of the accident that the risks of moving the lift whilst the lifting bed was in its highest position and only supported by locking pins resting on locking profiles was wholly unacceptable.  No body envisaged the problems that would arise in moving the lift into its new position.

4.        We have had careful regard particularly to the English Court of Appeal case of the R –v- F Howe and Son [1999] 2 All ER 249.  In that case the Court said this:

“In assessing the gravity of the breach it is often helpful to look at how far short of the appropriate standard the defendant fell in failing to meet the reasonably practicable test.”

This was put succinctly by the learned Deputy Bailiff in AG –v- Richardson Ltd [2000]JRC59, he said this:

“The Court has to consider the facts of each case and the seriousness of the breach and that is what determines the level of sentence”.

5.        Of course every case must turn on its own events and Advocate Lacey has been most detailed in her admirable address.  The Company has a remarkable safety record, but this particular accident was something entirely out of the ordinary.  The Company, once this appalling accident had occurred, did everything to assist the Prosecution and that is not in question.  We have no doubt that the Company believed that what they were doing was safe but without an installation manual which was not available it is, in our view, unfortunate that nobody contacted Allianz Cornhill Engineering for advice.

6.        There was no problem caused by the lift other than inconvenience and a possible danger to those using the steps to which it was adjacent.  We cannot deny the ability and the excellent record of the Company.  This was clearly a one-off accident and is a blemish on what has hitherto been an excellent record, but in our view the Company failed in this particular instance.

7.        Again in our view the fine must reflect the profits of the Company, and we cannot see, however we look at it, that a 1.4% of the annual turnover is so high a fine that we need to interfere.  Nothing this Court will do can ease the dreadful pain of those who are affected by this tragedy, and that is not only the family but also the working colleagues of the unfortunate who died.  Therefore we are going to confirm the requests of the Crown and order a fine of £50,000 and £3,000 prosecution costs.

Authorities

AG –v- SGB (Channel Islands) Limited [1990]JRC182.

AG –v- SGB (Channel Islands) Limited [1992]JRC98.

Law Officers of the Crown against James Henry Construction Limited, Royal Court of Guernsey 17 June 2003.

R –v- F Howe & Son [1999] 2 All ER 249.

AG –v- D.A. Richardson Ltd [2000]JRC59.

AG –v- Ernest Farley & Son Ltd [2000]JRC70.