Emma Evans

Last September saw Merlin Attractions Operations Limited ('Merlin') fined the largest fine to date of £5million, following an accident on the Smiler ride in June 2015 resulted in two of its sixteen passengers suffering partial leg amputations, and the remainder suffering a range of physical and psychological injuries.

Merlin pleaded guilty to an offence contrary to Section 3 of the Health and Safety at Work etc. Act 1974.  The Smiler rollercoaster had been in operation since May 2013 and just under 3millon people had ridden on the ride by the time of the accident. The accident involved a collision between a full 'car' with an empty and stationary test 'car' that had become stranded at a lower point on the ride.

His Honour Judge Michael Chambers Q.C. said in sentencing that it was accepted that the exposure to risk had arisen in this case from the "absence of a structured and considered system" in relation to the block resetting process that needed to be followed when any cars became stuck on the track.

A number of errors arose including: a lack of communication between the engineers and the control room, a failure in adequate checks carried out on how many cars were on the track and/or what positions they were in, and failures to check whether all cars (including any test cars) had been cleared from the track. 

Whilst it may have been suggested early in the case that this was the result of pure human error, the Judge remarked that the fault was not "that of individual engineers doing their best within a flawed system."

Ruling that this was a needless and avoidable accident in which those injured were fortunate not to have been killed, in applying the Sentencing Guideline the Judge found High Culpability based upon an absence of any evidence of an assessment carried out on the process of block resetting, and other failures including inadequate training and a lack of safe systems of work.

In regards to the harm, when taking into account the severity of the harm risked and likelihood of that harm occurring, the Judge found there was a high likelihood of Level A harm i.e. death, or physical or mental impairment resulting in lifelong dependency. Therefore, he arrived at 'Harm Category 1' overall. 

Merlin's reported turnover for 2012-15 was in the region of £300-400 million, but the Judge considered that the sentencing power available to him under the Guideline were sufficient to impose a proportionate sentence and it did not require him to move outside of the 'Large Company' bracket or to treat Merlin as a Very Large Organisation. Therefore, the applicable starting point was one of £2,400,000 and with an applicable range of £1,500,000 to £6,000,000.

Taking into account all aggravating features i.e. the number of persons exposed to risk, actual harm having resulted, a previous relevant conviction, and the mitigating features i.e. extensive remedial steps, exceptional levels of co-operation, overall good health and safety record, the Judge stated that the fine after a trial would have been £7.5m (moving substantially up from the available range), but in applying a maximum third discount for Merlin's prompt Guilty plea this reduced the level of fine to one of £5m. 

Recently, 9 May 2017 witnessed a fatality at Drayton Manor Theme Park where 11 year old, Evha Jannath, was involved in an incident on the Splash Canyon ride.  Initial reports suggest that she fell from the boat that she was travelling in into the water. However, it has been reported that the Post Mortem found that she suffered fatal chest injuries. The inquest has been adjourned and the HSE investigation continues.

Whilst it is yet to be established precisely how Evha came by her death, in light of Merlin, the systems for ensuring that the ride ran safely and responding if someone was to fall from the ride, and whether there had been any previous concerns and if so, what was done in response, are likely to be considered to some extent as part of the on-going investigation.

In conclusion, Merlin provides an important, although be it tragic, reminder of the need to ensure, wherever reasonably practicable, robust, communicated and effective systems are implemented to manage and mitigate foreseeable risks to person's safety. In the event that failings such as those seen in Merlin occur again in the future and instead result in fatal injuries, fines even higher than those currently being handed down by the Courts' are still yet to be seen.

Emma Evans, Associate at Pinsent Masons