A day after the Health & Safety Executive announced it would be prosecuting the manufacturer of an ejector seat which fatally deployed while a Hawk jet was on the ground, a Midlands' Court has handed down a record fine for a non-fatal accident in the UK.
Merlin Attractions Operations Limited ('Merlin') was fined £5 million as the result of what the judge described as a 'needless and avoidable accident' on its Smiler roller coaster at Alton Towers in June 2015. The accident which was 'exacerbated by the design' left several people injured, including two teenagers who suffered amputations as a result.
In sentencing Merlin, the judge referred to Merlin's previous convictions from their Warwick Castle site. Despite having a good health and safety record, the words of the judge from the Warwick Castle case, which also involved the lack of a suitable and sufficient risk assessment, should according to the judge 'have been ringing in the ears when they opened the Smiler'.
The fine is not a major surprise to those in the field who have been seeing the new Sentencing Guidelines for Health & Safety applied since 1 February 2016, but the application of the guidelines is of interest, including the categorisation of harm and culpability, as well as the positioning of the company by the judge as a 'large company', despite its £300M plus turnover, more than six times the starting point for 'large' companies under the guidelines.
The judge agreed with the HSE that the applicable categorisation was of high culpability and harm for a 'large company'. Accordingly, the applicable fine level was category one which meant his starting point was between £2m and £6m.
Despite full credit being given for a very early guilty plea and a prompt admission of responsibility, which allowed the criminal case to be disposed of within 15 months of the incident itself, the fine is towards the top end of the recommended range which the judge was applying in the case.
The previous highest fine for a non-fatal accident was £3 million following an uncontrolled release on an oil platform in the North Sea. It has been more than 10 years since Balfour Beatty were fined £7.5M for the Hatfield rail disaster and Transco were fined £15M for the Larkhall gas explosion (the highest fines for multiple fatal accidents in English and Scottish courts, respectively).
However, fines have generally been on the increase since late 2015, with several fines in the £1M+ bracket, previously reserved only for major accidents with mass exposure to risk. Sentencing Guidelines have now been implemented for a range of regulatory offences from safety to food hygiene breaches, environmental disasters to bribery. Businesses should be on notice that regulatory fines may be much more significant in future. The prospect of larger fines provides an even greater incentive, if one was needed, for companies to prioritise compliance and, in health and safety, to embed a safety culture in all parts of their businesses.