Jose Mercelino Marote Nunes, director of Nunes Gardening and Maintenance, appeared before the Royal Court yesterday after pleading guilty to one count of breaching the Health and Safety at Work Law.
Crown Advocate Conrad Yates told the court how, on 16 May 2018, Ferdinando De Assuncao (58) went to a house in Bonne Nuit Bay – a property he had worked at on about 15 previous occasions – to carry out general maintenance and gardening tasks.
He was helped by Telmo dos Santos, a brother of the company’s other employee, so they could finish the job more quickly before visiting the Social Security Department.
Mr Assuncao was asked by the property owner to trim a bush close to a cliff edge, as it had overgrown onto the patio.
The court heard he completed the job – on the land side and then on the cliff side – and then discovered a dead plant under the bush which he went to pull out. But as the plant began to come out of the ground, he lost his balance and fell head-first backwards over the cliff edge, striking his head as he fell.
The court was read a description of the gardener’s reaction to the fall. He said: ‘I fell on a stone and it was then when I woke up.’ The stricken Mr Assuncao then phoned his boss, Mr Nunes, before he fell unconscious again and ‘switched off’.
After witnessing his colleague fall, Mr dos Santos, informed the property owner about what had happened and she phoned 999.
A major rescue operation was subsequently launched involving the Fire and Rescue Service’s cliff rescue team an inshore rescue boat, a RNLI inshore lifeboat, a number of paramedics and 20 firefighters.
Emergency crews found Mr Assuncao face-down on the beach below the cliff with his hands by his sides.
Teh court heard that he was conscious and breathing, with cuts to his head and hands, but that he had no feeling below his waist.
The gardener was transferred by boat to Bonne Nuit Harbour and taken to hospital by ambulance.
As a result of the incident, Mr Assuncao was found to have broken his spine, leaving him paralysed from the waist down and, due to medical complications, had to wait three weeks before he could be operated on.
He was initially treated at a hospital in Salisbury, but has since been moved to Overdale Hospital and will now require full-time nursing care.
The company’s director, Mr Nunes, was interviewed by the Health and Safety Inspectorate in November. During that conversation he said that the company was small, with a turnover of around £50,000 to £60,000 per year.
He said that he thought that because of the size of his company he was not required to have a formal written health-and-safety policy.
On 4 January, Mr Nunes, on behalf of his company, admitted a charge of breaching the health and safety law.
Advocate Yates called for a fine of £25,000 plus costs and said there had been no supervision in place.
He also said that the company had failed to identify and assess the risks to its employees, conduct a risk assessment, implement any precautionary safety measures such as ropes or restraints and also failed to ever discuss safety with its employees.
Defending Mr Nunes, Advocate Adam Harrison said that a fine of £25,000 was too high and that Mr Nunes did not instruct his employee to work outside of the premises on the cliff edge.
He also said that the company had not cut corners with health and safety to maximise their profits, had co-operated with the investigation and had entered a guilty plea at the first available opportunity.
He added that the company had not been equipped with ropes and harnesses, as his employees were not meant to carry out work which required that equipment.
Advocate Harris also told the court that Mr Nunes had now set about improving his company’s health-and-safety practices, including enrolling his employees on health-and-safety courses.
In delivering the court’s sentence, Deputy Bailiff Tim Le Cocq said that the company had fallen substantially short of the required standards and that the consequences had been ‘catastrophic’.
He added that the risks of working near a cliff edge should have been obvious and that a safe system of work put in place as a result.
And he said that any fines given out to companies that broke health-and-safety laws should ‘sting’ so that businesses provided a safe environment for their employees.
He added: ‘However, in light of the circumstances of the company, it would be impossible for the company to discharge the fine and would put the future of the company at risk.’
The court fined the business a total of £15,000, with £2,000 payable in seven days and £500 payable every month thereafter until the full amount was paid.
Jurats Jeremy Ramsden and Rozanne Thomas were also sitting.
