Merlin Attractions Operations Ltd pleaded guilty to breaching s 3(1) HSWA and on 27 September was fined £5m with costs of £69,955.40. The prosecution followed the collision on the Smiler roller coaster on 2 June 2015 which resulted in 16 people being injured, two of whom had a leg amputation.
On the day of the incident, engineers on site overrode the Smiler’s control system to allow a halted car to continue operating. However, this was without checking it was safe to do so. A second car with 16 passengers was then sent around the track and collided into the back of the empty carriage. The HSE estimated the velocity of the crash to equate to a family car of 1.5 tons having collided at about 90mph.
The HSE’s investigations found no fault with the track, cars or control system which keeps the cars apart when the ride is running. The root cause of the incident was considered to be the lack of detailed robust arrangements for making safety critical decisions.
Prior to the accident, a test car had been sent around the 14 loop ride, but had become stuck due to wind speeds of up to 46 mph. Operating procedures for the ride prohibited such activity if there was a constant wind speed in excess of 34 mph. Whilst an alarm which goes off at high wind speeds had been placed on a ride alongside the Smiler, it failed to go off. Merlin have since installed wind speed measures on the Smiler itself.
Following the accident, there was a delay in removing the passengers, who were left hanging upside down in a car for over four hours after the crash. This was said to be due to a lack of a proper plan to remove passengers in an emergency situation, combined with a lack of understanding about the severity of the incident. Both these failings were seen as aggravating factors. Further aggravating factors were the number of people exposed to actual harm, and the existence of a previous conviction following an incident at Warwick Castle in 2012 when a visitor fell to his death and the risk assessment was lacking.
By way of mitigation, counsel for Merlin, Simon Antrobus, reasserted the public apology to those affected, which had first been given the day the incident occurred. The ride had been properly designed and independently assessed and a number of safety measures had been in place. Whilst it was assumed that engineers would check for the presence of a carriage by going trackside, it was accepted that there should have been a formal procedure outlining this requirement. It was confirmed that the company’s revenues had dropped by £14m following the incident, and that 30 changes to safety measures, equipment and training had since been implemented.
The company’s turnover for the three years prior to sentence averaged around £400m.
In applying the sentencing guidelines, Judge Michael Chambers QC remarked on the culpability of the company due to the lack of systems in place, and considered that there had been a high risk of harm (ie category 1). For a large company (turnover exceeding £50m) the appropriate range for high culpability category 1 cases is £1.5m - £6m. However, the judge noted that the guidelines permitted him to move outside the offence range if turnover very greatly exceeded the £50m threshold for large companies. He said it was certainly arguable that £400m turnover would justify that.
In the circumstances, the judge concluded that had there been a trial, the appropriate sentence would have been £7.5m ie beyond the above range. However, he gave full credit of one third to reflect the company’s early guilty plea. The Judge’s conclusion overall was that a fine of £5m was a proportionate sentence within the applicable offence range.