[2006]JRC146
ROYAL COURT
(Samedi Division)
12th October 2006
|
Before :
|
Sir Philip Bailhache, Kt., Bailiff, and
Jurats Le Breton and Newcombe.
|
The Attorney General
-v-
The Grand Hotel
And
Swift Property Services Limited
The Grand Hotel
Limited
|
1 count of:
|
Contravening Article 21 (1) (a) Health
and Safety at Work (Jersey) Law 1989 –
breach of duty under Article 5 (1).
|
Plea: Guilty
Details of Offence:
The Leisure Centre at the Grand
Hotel was being refurbished and the suspended ceiling over the swimming pool
had to be replaced. During the
course of work, asbestos insulation board was damaged and asbestos fibres were
released into the atmosphere, exposing persons in the area to potential health
risks. Those persons affected were
Andrew Robertson (sole shareholder/Director of Second Defendant, an employee of
the Second Defendant and two independent sub-contractors. First Defendant had initially contracted
Stevtom Limited to carry out the work.
Although Stevtom quoted for the work, the company was unable to carry
out the work and sub-contracted it to the Second Defendant. No mention was made to the Second
Defendant of the possibility of presence of asbestos containing materials. Mr Robinson of Second Defendant managed
and supervised the project as well as being directly involved “hands
on”. Exposure to asbestos
fibres was for a little over a day before the damaged boards were identified by
the Maintenance Manager of the First Defendant as likely to containing
asbestos. He immediately instructed
all the operatives in the area to stop work and leave the area. Some asbestos-containing materials had
already been dumped at La Collette.
Details of Mitigation:
No international breach of the
Law and Regulations. First
Defendant subsequently carried out complete asbestos survey of premises. Paid for decontamination works. Second Defendant was ignorant of
risks. Placed reliance on Stevtom
Limited where risk had to been mentioned.
Second Defendant in parlous financial circumstances.
Previous Convictions:
None.
Conclusions:
Total: £12,000 fine and
£3,000 costs.
Sentence and Observations of Court:
Conclusions granted.
Swift Property
Services Limited
|
1 count of:
|
Contravening Article 21 (1) (a) Health
and Safety at Work (Jersey) Law 1989 –
breach of duty under Article 3 (1).
|
|
1 count of:
|
Contravening Article 21 (1) (a) Health
and Safety at Work (Jersey) Law 1989 –
breach of duty under Article 5 (1).
|
|
1 count of:
|
Contravening Article 21 (1) (b) Health
and Safety at Work (Jersey) Law 1989 –
breach of Asbestos (Licensing)(Jersey)
Regulations 1997.
|
Plea: Guilty
Details of Offence:
See Grand Hotel above.
Details of Mitigation:
See Grand Hotel above.
Previous Convictions:
None.
Conclusions:
|
Count 1:
|
£7,500 fine.
|
|
Count 2:
|
£7,500 fine.
|
|
Count 3:
|
£5,000 fine.
|
Total £20,000 fine and
£3,000 costs.
Sentence and Observations of Court:
|
Count 1:
|
£6,000 fine.
|
|
Count 2:
|
£6,000 fine.
|
|
Count 3:
|
£3,000 fine.
|
Total £15,000
fine and £3,000 costs.
Fines levied on the
Second Defendant must be paid within 18 months.
Mrs S. Sharpe, Crown Advocate.
Advocate M. J. Thompson for the First
Defendant.
Advocate C. Deacon for the Second Defendant.
JUDGMENT
THE BAILIFF:
1.
Asbestos
is now widely recognised to be a highly dangerous material which is to be
treated with extreme care. Any
employer engaged in the building trade should be fully aware of that fact and
of the necessity to take reasonable precautions or adequate steps as required
by law to prevent the exposure of his employees and the public to asbestos
fibres and the consequent risk of danger to health. Any owner of property, but
particularly commercial properties, who employs contractors to work on his
property is under a similar duty.
2.
What
happened in this case was that Grand Hotel Limited, the First Defendant, wanted
work done on its swimming pool area.
The First Defendant was aware of the risks from asbestos because it had
carried out a survey of the property in 1999 although not of the particular
area in question here. Furthermore,
it had commissioned an update of that report which was undertaken and completed
in December 2005 before the work to which this prosecution relates had commenced.
3.
The work
was carried out by the Second Defendant, Swift Property Services Limited. Its principal, Mr Andrew Robertson,
appears to have been substantially if not entirely ignorant of the risks of
asbestos. He was certainly unable
to recognise the material and exposed himself and his employees to considerable
risks by working in asbestos dust for a period of several hours. But for the actions of the maintenance
manager of the First Defendant, Mr Howell, who recognised the material and
immediately caused the area to be vacated, the risks could have continued for
much longer.
4.
The duty
to protect employees is a high duty.
Employees do not benefit from the profits of an enterprise other than
through their wages and are entitled to expect that their employer will provide
a safe system of work and will protect their interests. Mr Robertson utterly failed in this
regard. It seems that he was
ignorant of the risks but he was also reckless as to the safety of his employees. This was a very serious breach of the
Regulations by the Second Defendant.
We endorse a comment of the Deputy Bailiff in AG –v-Smith
[2005] JRC 076 that in cases of
reckless disregard of the danger the Court should impose substantial fines.
5.
In
mitigation, so far as the First Defendant is concerned, the Company accepted
responsibility without demur and has pleaded guilty to the charges. It is undertaking a substantial
refurbishment of the Hotel which will ensure that this kind of risk will not
recur. It had identified the risk
of asbestos in the sense that it had commissioned an up-date of the 1999 Report
which was completed before the end of December 2005.
6.
The Court nonetheless
finds it extraordinary that no one thought fit to advise the contractor that
the contents of the report demonstrated the presence of asbestos in many parts
of the property. We think the
conclusions moved for by the Crown Advocate are entirely correct and we
accordingly fine the First Defendant £12,000 and order it to pay the
costs of the prosecution not exceedingly £3,000.
7.
As far as
the Second Defendant is concerned it was, through its beneficial owner,
ignorant of the risks involved.
Ignorance is, however, no excuse.
The defendant company exposed its employees to substantial risk. In mitigation the Second Defendant was
co-operative, admitted the offence and has pleaded guilty to the charges.
8.
Counsel
told us that Mr Robertson was aggrieved that no one had informed him of the
presence of asbestos in the Hotel.
We understand that and we think that some responsibility is borne by
Stevtom Limited which had carried out work on the Grand Hotel and which
introduced the work to the Second Defendant. It is that factor alone which has caused
us to reduce slightly the conclusions
for which the Crown Advocate has moved.
9.
The Second
Defendant is accordingly fined the sum of £6,000 on Count 1, £6,000
on Count 2 and £3,000 on Count 3 making a total of £15,000 and we
order it to pay the costs of the prosecution not exceeding £3,000. The fines levied upon the Second
Defendant must be paid, having regard to the financial difficulties which it
faces, within 18 months.
Authorities
AG
–v-Smith [2005] JRC 076.