Major theme park operator fined £5 million over ‘Smiler’ ride collision

Merlin Attractions Operations Ltd (“Merlin”) has been fined £5 million today following the Alton Towers rollercoaster crash last year.

On 2 June 2015 five people were seriously injured when their carriage collided with another on the Smiler ride. As a result, two teenagers required leg amputations following the incident, and several others were also seriously injured. Earlier this year, Merlin pled guilty to breaching section 3(1) of the Health and Safety at Work Act 1974.

The theme park operator failed to appropriately manage the risks associated with the rollercoaster at its Alton Towers site. Supervising staff had not been able to see that a test carriage, having being sent around the ride, had come to rest in the valley of the track. The inbuilt computer system subsequently stopped the ride. However, the operating engineers, believing the system to be faulty, overrode the halting mechanism. An occupied carriage with sixteen passengers on board was sent along the track and into the path of the empty test carriage.

In mitigation, it was stated on behalf of Merlin that health and safety changes have since been implemented at the leisure venue. New measures include the appointment of a lead engineer with responsibility for decision making on faults, provisions for the closure of the ride past wind speeds of 35mph, and a new emergency stop button installed at ground level.

Comment

Merlin was warned in advance of the hearing to expect a "very large fine" for health and safety breaches so the level of fine should come as no surprise and in fact it would not have been a surprise had the fine been far higher.

2016 has been an unprecedented year for health and safety sentencing. Numerous fines in excess of £1 million have been levied against large organisations, following the publication of the “Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guidelines” for courts in England and Wales, effective from 1 February 2016. Earlier this month, a major rail company were fined £4million following the death of a pedestrian at one of its crossings, reduced from £6 million on account of an early guilty plea. This case followed a line of others including a steel manufacturer fined £1.98 million following an employee’s hand injury and an offshore operator fined £3 million for exposing workers to risk. In Scotland following reference to the same Guidelines a major energy company was fined £1.75 million following a scalding incident and is presently appealing the level of fine.

The two day sentencing hearing involved lengthy discussion over issues raised by the Guidelines, in particular the level of Merlin’s culpability, the number of people exposed to the risk of harm and the turnover of the company. The level of harm was determined to be the most severe with high culpability. The Guidelines state in respect of “very large” organisations “where a defendant company’s turnover or equivalent very greatly exceeds the threshold for large companies, it may be necessary to move outside the suggested range to achieve a proportionate sentence”.

Previous commentary from the Court of Appeal in the context of a similar environmental guideline dealt with what constitutes a very large organisation. In that instance the Court of Appeal rejected the prosecution attempt to suggest that the courts should define any organisation with a turnover of £150m (on a 3 yearly average) as a “very large” organisation. It held that it will be obvious when an organisation is very large and any doubtful cases should be assessed on a case by case basis.

In sentencing, it is reported that Judge Michael Chambers QC considered Merlin’s turnover of in excess of £300 million to reflect a company of “high turnover”. Within the Guidelines however, he applied the range for a large organisation rather than a very large organisation. He considered the breach to involve high culpability and harm, and therefore considered the range of fines available to be £2 million - £6 million. It is reported that but for Merlin’s guilty plea a fine of £7.5m would have been imposed.

During mitigation, following an apology from Merlin for the information it had provided to the media in the aftermath of the incident suggesting human error, the judge was reported to have sought clarification from their legal team as to whether there had been any resignations at a senior level. Further, the salaries and bonus arrangements of the Board came under close scrutiny. Such questioning highlights not only the potential for uncomfortable questions to be asked of companies and senior individuals following a serious incident but also the increased focus of the courts on achieving accountability for health and safety.

Prosecution and enforcement developments in this area of regulation will be discussed at CMS’ inaugural Health, Safety, Environment and Food Safety Conference. The event will take place on 16 November at CMS’ UK Headquarters in Cannon Place. Click here for more information.