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August 2, 2023

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Legal analysis

Legal perspective: Croydon tram disaster

Emma Evans and Claire Burrows at Brabners LLP share their legal observations after last week’s prosecutions in light of the Croydon tram disaster.

Croydon Tram CrashLast week, Transport for London (TfL) and Tram Operations Limited (TOL) received £10 million and £4 million pound fines respectively and were ordered to pay costs, having been prosecuted by the Office of Rail and Road following the tram disaster in Croydon.

On 9 November 2016, a tram carrying 69 passengers overturned and derailed on a sharp bend, approaching the junction near the Sandilands stop, during its journey from New Addington to Wimbledon. There were seven fatalities and many others suffered serious, life-changing injuries.

The tram was reportedly travelling in excess of the recommended speed limit on the approach to the bend; but a defective speedometer, inadequate signage and lighting were all criticised. The incident location was also a stretch of tramway, where active control by the driver was limited for around 49 seconds.

As reported in the ‘Rail Accident and Investigation Branch’ (RAIB) Report, it was “probable the driver temporarily lost awareness.” However, TfL and TOL failed to ensure there was a suitable risk assessment considering high-speed derailment, and the location was a ‘safety blind spot’ where suitable measures had not been considered or implemented to control the risk of potential derailment, or driver error. Each company pleaded guilty at an earlier hearing for failing to do everything reasonably practicable to ensure the health, safety and welfare of the passengers as required under the Health and Safety at Work etc. Act 1974.

Various recommendations within the RAIB Report, prompted new safety measures and improvement, including:

  • Harnessing a positive safety culture – organisations should make improvements to their Safety Management Systems, encouraging a culture where people feel able to report their own mistakes;
  • Renewed focus on modern technologies – noting how new technology could: 1. help to intervene when a tram may be approaching hazardous features too fast; or 2. raise an alert where drivers may temporarily lose awareness of risk; and
  • Approach to risk assessment – it remained vital for organisations to consider and review all information available, within its control (as well as industry knowledge), to identify foreseeable risks (particularly ‘‘high risk’ hazards), and thereafter ensure adequate control measures eliminate or reduce risk. These should also be kept under review, and adequately re-considered in the event of any ‘near miss’ and avoid missed opportunities.

Notably, many of these factors were referenced during the sentencing, especially the lack of risk assessment described as a “core failure”. Some other interesting legal observations are as follows:

  • Organisations and individuals often have concurrent legal duties under health and safety (H&S) legislation. The driver of the tram was also prosecuted for allegedly failing in his own duty to take reasonable care of his passengers, but found Not Guilty after a trial. Part of his defence related to poor signage and becoming disorientated at the location.
  • TfL and TOL were heavily criticised for their “complacency” around inadequate lighting, and the lack of visual clues in the tunnel was described as “disturbing”,  which contributed to the drivers’ failures to assess the location. The Court was told that there was an “over-reliance on fallible humans” and the tram drivers were “let down” by their Employer.
  • The length of time that the failings and breach continued remains highly relevant – the Judge remarked this was eight years in TfL’s case, and 16 years for TOL. On this basis, Judge Fraser found against the Defence, agreeing with the Prosecution that Culpability (how far below the standard they fell) was ‘High’.
  • TFL were recognised to be a ‘Very Large Organisation’ (VLO) as their turnover vastly exceeded the £50 million threshold for a ‘Large’ organisation. In 2022/23 – its turnover was £9.3 billion. The Judge said it would be wrong to simply apply a multiplier to the figures in the sentencing range, but felt a move outside of the available range justified. Having previously determined a £2.4 million starting point and range of £1,500,000 to £6,000,000 due to risk of harm and culpability, the actual starting point applied for TfL was £15 million. Notably, this exceeded all the Sentencing Guidelines available ranges, even where culpability can be said to be ‘Very High’. This figure was then reduced by 1/3 for the prompt Guilty plea.
  • Finally, notwithstanding TFL is a public organisation largely dependent on taxpayer support, the need for a substantial fine was still considered necessary by the Judge as a ‘deterrent’ to others. And, despite the arguments advanced by TfL around financial deficit due to the covid pandemic, no further reductions were applied.

Emma Evans, Legal Director in the Regulatory (Health and Safety) Team at Brabners stated: “Whilst this is not the highest fine overall for H&S failings in the UK, it is certainly the highest we’ve seen in recent times under the Definitive H&S Sentencing regime. I think this tragic case highlights a number of important points for Employers, particularly the comments in sentencing that “Prime responsibility for accident and ill health prevention rests with management”. Businesses’ can often be quick to conclude an incident is ‘employee error’, when in fact most ‘root causes’ in my experience come back to senior management and in fact, are preventable.”

Claire Burrows, Partner in the Regulatory (Health and Safety) Team at Brabners also adds: “There is no doubt that this case was particularly tragic, but it nevertheless offers a stark reminder to all duty holders that fines for H&S offences continue to rise. Fines in excess of a million pounds are becoming more common place and this case sends a clear message that where a very large organisation falls foul of the legislation and the facts of a case justify it, eight figure fines can and will be handed down by the Courts. Complacency when it comes to complying with H&S legislation simply isn’t an option in today’s world!”

About the authors

Claire Burrows is a Partner at Brabners LLP, specialising in regulatory compliance and with extensive experience advising clients (both national and international) in health and safety law across various sectors including construction, manufacturing, demolition and health care.

Emma Evans is a Legal Director in the Regulatory Team at Brabners LLP, Member of IOSH, and Trustee of One Per Cent Safer – she is specialist lawyer and advisor in contentious and non-contentious health and safety law across many high-hazard industries, including: construction, manufacturing, energy and housing.

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Andrew Floyd
Andrew Floyd
9 months ago

It seems to be all about the fine and wise after the event.
Is there any evidence of driver reporting and concerns about this section of track?
If the companies were not aware of the potential and a lack of RA what part did the company’s OH&S advisors play?

John Searl
John Searl
9 months ago

I am a safety professional and a big part of the way I influence positive safety is through behavioural means. I agree that root causes for accidents and incidents are in the most part management failures, however, the individual also has responsibilities towards those affected by his or her acts or omissions. I find it difficult to understand how the driver of this tram was found to be not responsible and was found not guilty. I have travelled many times on the particular tram line where the accident happened, the tunnel where the driver says he became disorientated has, in… Read more »