Tragedy on rollercoaster highlights safety changes

Judge Michael Chambers QC described the crash on the Smiler rollercoaster as a “catastrophic failure” on the part of the operator. The court ruled Merlin failed to appropriately manage the risks associated with its rollercoaster. 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 stopped the ride. but the operating engineers, believing the system to be faulty, overrode the halting mechanism which resulted in an occupied carriage colliding with an empty test carriage.

In mitigation, it was stated that health and safety changes have since been implemented. 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 an emergency stop button at ground level.

Judge Chambers was, however, unequivocal as to where the responsibility for this unfortunate event lay, saying “this was a needless and avoidable accident in which those injured were fortunate not to have been killed”.

£5m is a substantial penalty to be imposed in the UK. For firms based in in England and Wales this case should serve as a stark warning that courts will hold them to account for breaches of health and safety. Fines have significantly increased following the introduction of sentencing guidelines for courts south of the Border, which came into force in February 2016

Earlier this month, a rail company was fined £4m for a major health and safety breach after the death of a pedestrian at one of its crossings. This case followed a line of others, including a steel manufacturer fined just under £2m after incidents in which two different employees lost parts of their hands, as well as an offshore operator hit with a £3m penalty for exposing workers to risk.

Here in Scotland, a utility company was recently fined £1.75m – although this is currently under appeal – following a scalding incident at Longannet power station. This case was the first case in Scotland where the judge expressly stated he was applying the sentencing guidelines, despite the fact that they are not directly applicable here.

The overall position on fines for health and safety breaches north of the Border is rather inconsistent. To date in such cases, Scottish courts have made reference to an older set of sentencing guidelines when imposing fines, however these are restricted to offences causing death. There is, however, a Scottish sentencing council which was established in October 2015, tasked with preparing sentencing guidelines for courts in Scotland which is expected to deliver greater consistency in sentencing practice.

It is possible that this new body will follow its counterpart’s lead in England and Wales and produce similar guidelines, resulting in significantly increased sentencing in health & safety cases.

The leisure operator M&D’s is awaiting a decision on whether it will face enforcement action for an incident in Strathclyde Park last summer when ten people were injured on one of its rollercoasters.

It will no doubt have seen how the Merlin case has brought UK health and safety prosecutions under the spotlight, however, the outcome of the Scottish appeal case on the application of the definitive sentencing guidelines, due to be heard later this month, is likely to be more relevant should M&D’s face any court action.

Jacqueline Cursiter, Senior Associate and health and safety legal specialist at law firm CMS