Employer fined £15k over gardener’s “catastrophic” cliff fall

Friday 08 February 2019

A small gardening company has been fined £15,000 after one of its employees plunged 25 metres down a cliff while on the job in a “catastrophic” accident that left him paralysed from the waist down and unable to walk again.

The Royal Court this morning ordered Nunes Gardening and Maintenance Limited to pay the substantial fine, relating to a breach of the Health and Safety Law that led gardener Ferdinando Moniz De Assuncao fall down the cliffs onto the beach at Bonne Nuit while trying to pull out a dead plant.

The company admitted breaking the law at a hearing earlier this year and today its owner, Jose Mercelino Marote Nunes, appeared in Court for sentencing.

Crown Advocate Conrad Yates took the Court through the facts of the case.

The Court heard that on the morning of 16 May last year, Mr Assuncao was working at a property which sits atop the cliffs at Bonne Nuit in a garden that he used to tend on a regular basis. 

Pictured: The 58-year-old gardener was working in a garden he had tended many times before in Bonne Nuit when he fell down the cliffs. (Court handout)

Crown Advocate Yates recounted how one of the owners of the house asked the 58-year-old gardener “to trim back a bush close to the cliff top”.

Whilst Mr Assuncao was doing this, it was heard that he “completed the task from both the garden side of the bush and also the cliff edge”, meaning that he was, at times, working outside the fence of the property close to the cliffs. 

The Crown Advocate explained that: “When [Mr Assuncao] had finished trimming the bush, he discovered a dead plant near it. He bent down to pull it out of the ground. As the plant worked free, Mr Assuncao lost balance and fell backwards over the cliff head first, striking his head as he fell." 

The gardener’s fall prompted a joint operation involving more than 30 Emergency Services officials.

Crown Advocate Yates told the Court that “there had been no risk assessment undertaken at the property at all, neither was there a safe system of work in place". "The location of the property at the top of a cliff face would mean that such an assessment and system were of paramount importance," he explained.

Pictured: Ferdinando Assuncao's 25-metre fall prompted an extensive emergency response to recover him from the beach (Jersey Fire & Rescue Service).

This, and the lack of “instruction, information, training and supervision”, Crown Advocate Yates later termed as a “serious breach” of the Health and Safety Law whereby the company “fell substantially short of the appropriate standard.” 

It was heard that Mr Assuncao “suffered serious and life changing injuries” as a result of the accident and the Crown Advocate urged Deputy Bailiff, presiding alongside Jurats Ramsden and Sparrow, “to remember that Mr Assuncao will not walk again".

After initially being treated at Salisbury Hospital in the UK, Mr Assuncao was then transferred to Jersey’s Overdale Hospital at the end of last year. While the 58-year-old was receiving treatment in the UK, his daughters were able to visit him due to a local crowdfunding campaign which raised over £1,700.

“He remains fully paralysed below the waist and he has been advised that he will need to find full time nursing care,” the Crown Advocate stated.

Having summarised his case, Crown Advocate Yates asked the Court to impose a fine of £25,000 as well as ordering the gardening company to pay £3,000 in prosecution costs.

Pictured: The case came back to the Royal Court where the company was ordered to pay a fine of £15,000 for breaching the Health and Safety law.

In response, Defence Advocate Adam Harrison, representing the company, argued that this level of financial penalty is “in all circumstances, too high” and that the Court should take into consideration the circumstances of the small company when considering their sentence.

Addressing the Deputy Bailiff and the Jurats, Advocate Harrison said that his client “was not deliberately putting [Mr Assuncao] in harm’s way” and that they “did not instruct Mr Assuncao to work outside of the fence".

Advocate Harrison also emphasised the small means of both the gardening company and of Mr Nunes himself.

Handing down the sentence, the Deputy Bailiff acknowledged that “the consequences” of Mr Assuncao’s fall “were catastrophic” and that he and the Jurats “agree with the Crown that the company fell substantially short of the appropriate standard".

Taking into consideration the “financial circumstances” of the company, the Deputy Bailiff imposed a financial penalty of £15,000 and no order for prosecution costs were made.