R (HSE) v Merlin Attractions Operations Ltd, Schemes and Mind Maps of Communication

Download R (HSE) v Merlin Attractions Operations Ltd and more Schemes and Mind Maps Communication in PDF only on Docsity! IN THE CROWN COURT AT STAFFORD REGINA (HSE) V MERLIN ATTRACTIONS OPERATIONS LIMITED SENTENCING REMARKS BEFORE: His Honour Judge Michael Chambers Q.C. 26th and 27th September, 2016 Introduction On the 2nd June, 2015 members of the public visiting the Alton Towers amusement park, mainly young people, suffered life changing and serious injuries in an accident on a rollercoaster as a result of the defendant company’s catastrophic failure to assess risk and have a structured system of work. Human error was not the cause, as was suggested by the defendant in an early press release. The defendant now accepts the prosecution case that the underlying fault was the absence of a structured and considered system, not that of individual engineers doing their best within a flawed system. Members of the public had been exposed to serious risk of one train colliding with another when the controlling computer system was re-set having been overridden to enable the engineers to address faults since the opening of the Smiler rollercoaster two years before in May, 2013. This was a needless and avoidable accident in which those injured were fortunate not to have been killed or to have bled to death. It was, in my judgement aggravated by the lack of proper emergency access to the accident site which meant that those injured remained trapped in great pain and distress hanging at an angle of 45 degrees some 20 feet above the ground for 4 to 5 hours before being released by the emergency services and taken to hospital. The “thrill of the fair” is a long established tradition in which members of the public in great numbers, particularly children and young people, enjoy the excitement and illusion of danger. But it should be just that – an illusion. They do not actually expect to be injured. That is why this case has rightly received considerable public interest and concern. Those, such as this defendant, who 1 2 operate such rides for commercial gain are under a very high duty of care to ensure that their users are safe at all times. In this case, it is, of course, not suggested that this was a deliberate breach, but the defendant company fell far short of the standards that the public are entitled to expect. By its plea of guilty it has acknowledged that and is entitled to proper credit, as it is for co- operating fully with the investigation. The Charge This is a committal to the Crown Court for sentence following the defendant Merlin Attractions Operations Limited’s plea of guilty in the Magistrates’ Court to an offence contrary to section 33(1) of the Health and Safety at Work Act, 1974, namely that it on or before the 2nd June, 2015 failed to conduct its undertaking in such a way as to ensure, so far as was reasonably practicable, that the visitors to Alton Towers theme park were not exposed to material risks to their health and safety. The offence is concerned primarily with punishing the criminality for the exposure to a material risk; the fact that actual injuries were in fact caused is simply a manifestation of that risk and an aggravating feature. Although those injured in this incident are at the forefront of everyone’s mind, this sentencing exercise should not be seen as an attempt to put a monetary value on what has happened to them or on their injuries; compensation will be for the civil court. No financial penalty can put the clock back. It is for me to judge the seriousness of the offence by assessing culpability and the risk of harm. The defendant has submitted a written basis of plea dated the 27th May, 2016 which mainly accepts the prosecution case. Where there are material differences the parties have agreed to abide by the findings of the court. I have received very helpful and able submissions from Mr. Bernard Thorogood for the prosecution and Mr. Simon Antrobus for the defendant company for which I am grateful. Factual Summary The defendant company is part of a group which operates 110 attractions across the world and some of the best known visitor attractions in the United Kingdom. Its accounts disclose a turnover of £367m in 2012, £395m in 2013, £412m in 2014 and £385m in 2015. It is, therefore, a substantial and profitable company. 5 of communication and double checking, could and should easily have been avoided by a written system of working to cover this crucial period of human intervention including a single overall supervisor and a structured approach to ensuring the track was safe for passengers before authorising a re-set and return to normal mode. The Injuries I have read carefully the medical evidence and the victim impact statements. Most, if not all, of the 16 passengers suffered physical and psychological injuries. Those persons occupying the front rows of the train suffered very serious injuries which have changed their lives. By illustration, two young women in the front row, Victoria Balch and Leah Washington required partial leg amputations. Joe Pugh and Daniel Thorpe suffered serious leg fractures which have impaired their mobility and independence. In the second row Mrs Chandaben Chauhan and her two grown up daughters suffered internal injuries and rib fractures. Whip lash injuries and post traumatic stress disorder are common to most. They all describe how their lives and plans for the future have been turned upside down. Most moving are the statements from family members who not only have had the distress of experiencing their loved ones suffer great trauma, but have had their own lives changed fundamentally, for example by having to give up work to provide care or move from the family home. All those injured and their families have shown great courage and fortitude. This is not meant to be a comprehensive list of the injuries or the residual effects, but some indication of the enormity of the consequences when a train on a rollercoaster is caused or permitted to collide with another one. It contained, as is always likely to be the case, mainly young people, four of whom were aged under 20. Doing the best I can, I understand that the train was occupied as follows, with their age at the date of the incident: Row A (front): Daniel Thorpe 27 Victoria Balch 19 Leah Washington 17 Joe Pugh 18 Row B Oliver Tinkler 36 Meera Chauhan 26 Chandaben Chauhan 49 Vanisha Singh 29 6 Row C Jody Walker 19 Louis Surtees 18 Tiffany Wells 21 Ben Moore 22 Row D Benjamin Spencer 22 Kesey Hall 24 Lauren Hall 26 Jamie Beattie 23 Expert Findings The principal findings of the prosecution expert Mr Stephen Flanagan were that members of the public were exposed to risks to their health and safety from failings of the defendant which included:  To conduct a suitable and sufficient risk assessment;  To devise, implement and properly manage a structured and effective safe system of work to deal with faults on the ride, including the resetting of the rollercoaster after a stoppage;  To devise, implement and properly manage the effective provision to its staff of health and safety information, training and supervision concerning the safe operation of the ride including the procedures to be followed when dealing with a “zone stop” fault; and  To devise, implement and properly manage an effective system to deal with the potential impact of wind speed on the operation of the ride. It was his opinion that the defendant fell far short of the standards expected. There was no task analysis. There were factors present at the time of the incident which were easily avoidable had there been a proper written system of working. Those failures are set out at page 23 of his report. His conclusions are summarised at paragraph 93 onwards of the prosecution opening and are not disputed. Sentencing Guidelines I am required to follow the guidance of the Sentencing Council on Health and Safety Offences which came into force on the 1st February, 2016. Under section 125(3)(a) of the Coroners and Justice Act, 2009 the court is required to sentence within the offence range. Section 125(3)(b) requires the court to identify a category of offence to fix the starting point for sentence. The court can move outside the category range within the offence range where there are powerful aggravating or mitigating factors. The court can sentence outside the offence range if the interests of justice dictate or in the case of the present offence, where the 7 turnover of the defendant company “very greatly exceeds the threshold for large organisations”, namely £50 million. Step One Determining the Offence Category Culpability The prosecution submit that culpability is “high”. The defence submit that it is borderline high/medium because of the presence of factors listed under “low”. I am not satisfied that significant efforts were made to address the specific risk in question. There is no evidence that there was any specific assessment of the task centred on block resetting. To simply rely on initial training by the manufacturer and then hope that it would be “cascaded” down to other engineers was woefully inadequate. Although the defendant did ask for training on block resetting it is unclear whether that went beyond merely explaining how it worked or whether any training was actually given or validated. As Mr. Flanagan observed, the responsibility to provide the training and to establish a safe system of work was that of the operator, namely the defendant. Further, the fact that fortunately there had been no such collision before does not equate with there being “no warning/circumstance indicating a risk to health and safety”. I agree with the prosecution that this incident was foreseeable Based on the evidence of Mr. Flanagan, which I accept, I am satisfied that “The offender fell far short of the appropriate standard” by firstly, “failing to put in place measures that are recognised standards in the industry”, and secondly, “allowing breaches to subsist over a long period of time”. Therefore, I conclude that culpability was “high”. Harm I remind myself that the offence is in creating a risk of harm. I need to use the table provided to identify an initial harm category of the risk of harm created by the offence. The assessment of harm requires a consideration of the seriousness of the harm risked (it is common ground that is Level A – death or serious physical impairment with lifelong dependency on others); and the likelihood of that harm arising. The prosecution submit that likelihood was high, the defence say low. The guideline makes a distinction between consequence (the seriousness of the harm risked) and the likelihood (the chance of 10 safety of thousands of children and young people. Whilst the defendant should have full credit for the plea of guilty the earlier acceptance of responsibility was tainted by the willingness to blame its employees when the fundamental fault was that of the company. It has been submitted that I should take into account as some additional mitigation the economic impact of this incident on the company. As a matter of principle, I am not satisfied that is well founded. In any event having perused the accounts and turn over figures I am not persuaded it has had a substantial or lasting impact; it remains a prosperous company and it has not prevented the directors of the parent company being awarded generous share options. Step Three I have to check that the proposed fine based on turnover is proportionate to the overall means of the defendant. The fine must also be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation. Deterrence generally beyond this company is a relevant sentencing principle, pursuant to section 142 of the Criminal Justice Act, 2003. I have stepped back and reviewed the proposed sentence in the light of all the general principles set out in the guideline. Whilst having proper regard to the mitigating factors, I find that there are powerful aggravating factors in a case involving a serious breach of a high duty of care which put thousands at risk of death or serious injury over a long period of time and which has caused devastating injuries to a significant number of people. I, therefore, move beyond the category range and up the offence range. In my judgement had there been a trial the appropriate fine would have been £7,500,000. I reduce that by one third to reflect the plea of guilty at the first reasonable opportunity to £5,000,000. Prosecution Costs The defendant will pay the prosecution (the HSE) costs in the agreed sum of £69,955.40 11