Two victims who each lost a leg in the Smiler rollercoaster crash are suing the park’s owners
Leah Washington and Vicky Balch were on the front row of the Smiler ride which crashed into an empty carriage in front of it in 2015.
Merlin Entertainments, which owns Alton Towers, were fined £5m as a result of the crash, which left five people seriously injured.
Lawyers for the two girls, who each had a leg amputated following the crash, have said that their injuries were caused by Merlin’s ‘negligence and/or breach of statutory duty’.
They could each reportedly receive ‘well in excess of £2m’ in compensation if the High Court claim is successful.
The Smiler ride at Alton Towers
The owners were told to expect “a very large fine”, after the resulting investigation into the Smiler ride crash found that human error was to blame.
Merlin admitted breaching health and safety regulations in April 2016 and accepted that additional measures could have been taken to protect the safety of passengers.
The company was ordered to pay costs of £69,955.40.
At the ruling, Judge Michael Chambers QC began his opening remarks saying there was a “catastrophic failure” and that the crash was a “needless and avoidable accident in which those who were injured were lucky not to be killed”.
He said the crash was exacerbated by the design which left the passenger hanging for four to five hours waiting to be rescued by the emergency services.
The Judge continued that Merlin Entertainments is “entitled to credit” for pleading guilty and cooperating with the investigation.
He said the engineers should have seen the stalled carriage on CCTV if they had checked it in the control room.
He said it took too long for the emergency services to be called – 17 minutes, and it was over four hours before they were released after impromptu scaffolding was erected.
“This could have been avoided if a proper plan was in place.”
The judge said that the passengers suffered “physical and psychological injuries” and the victims on the front row suffered injuries that were life changing, as well as significant blood loss.
The Judge has agreed with the HSE‘s claim of ‘high’ culpability by a lack of systems.
In reviewing the sentencing guidelines, Judge Chambers said that the offender fell far short of required standards.
“I am satisfied there was a high risk of harm, so this is category one.
“Having found high culpability and harm for a company of high turnover, the starting point is £2m up to £6m, but I will stick within this range.”
The Judge took note of the previous convictions at Warwick Castle, which he said should have left a “ringing in the ears”.
He added that the defendant does have a good health and safety record overall.
He then fined Merlin Entertainments £5m for the Smiler ride crash.
Following sentencing, Neil Craig, the HSE’s Head of Operations for the Midlands said: “When people visit them parks they should be able to enjoy themselves safely.
“Merlin failed to protect their customers. They let them badly down. It is right they have been held to account for those failing in a criminal court.
“This avoidable incident happened because Merlin failed to put in place systems that would allow their engineers to work safely while the ride was running.”
Paul Paxton, from Stewarts Law, who is acting on behalf of the eight victims, said: “Symbolically and practically, today marks a closure of what has been a long and painful chapter for my clients.
“The court has imposed what we believe is a record fine for the industry, but of course money alone will never replace limbs, nor heal the psychological scars.”
Nick Varney, Chief Executive of Merlin Entertainments, said the company “accepted full responsibility for the terrible accident at Alton Towers”.
He added: “In accepting responsibility and liability very early on we have tried to make the healing and compensation process as trouble free as possible for all those involved.
“We have strived to fulfill our promise to support them in every way and I promise that this support will continue as long as they need it.
“We were always aware that we would end up here today facing a substantial penalty.
“However, Alton Towers – and indeed the wider Merlin Group – are not emotionless corporate entities.
“They are made up of human beings who care passionately about what they do. In this context, the far greater punishment for all of us is knowing that on this occasion we let people down with devastating consequences.
“It is something we will never forget and it is something we are utterly determined will never be repeated.”
A legal view
Commenting for SHP at the time, Dr Simon Joyston-Bechal, Director of Turnstone Law said: “This is the first major case to come up under the new sentencing guidelines.
“The fact that Merlin’s turnover is several hundred million pounds means the judge needed to looking closely for the first time at the guideline recommendation that, in order to achieve a proportionate sentence, he can go beyond the top of the stipulated range of fines.
“In this case, although he decided there was “high” culpability, he came to the view that it was not necessary to exceed the top of the range six million pounds to give a proportionate sentence. That looks like a good result for the defence team, since the fine could have been much higher.”
Also commenting for SHP, Kevin Bridges, Partner at Pinsent Masons, said: “This is perhaps a lower fine than was predicted but nevertheless it is the highest fine we have seen since the Sentencing Guidelines took effect.
“Although the judge appears to have said he would stay within the range for large companies where culpability is high and the harm category is 1, which is a maximum of £6m, the defendant had, of course, pleaded guilty at an earlier hearing.
“That would have entitled them to up to a one third discount, which would have placed the fine at £7.5m initially.
“This is some way north of the top of the range for this offence category. Perhaps the aggravating features and the previous Warwick Castle conviction took the fine initially beyond the bracket, but was brought back down to within it once credit for the timely guilty plea was applied.
“The next issue we await the courts to determine is when the very large company categorisation will be applied and the court be at liberty to move outside of the ranges in order to achieve a proportionate sentence.”
British Safety Council
Louise Ward, Policy and Standards Director at the British Safety Council, said: “This was a tragic incident in which a number of people suffered significant physical and psychological injuries. Our thoughts today are with all of those who were affected by this incident.
“The British Safety Council has always championed the need for a transparent and consistent approach to sanctioning for health and safety offences, where the penalty applied is proportionate to the circumstances of the offence.
“To that end, we supported development and implementation of the sentencing guidelines for health and safety offences in 2015. It will be important to review how the legal arguments presented during this case have added definition to the framework.
“We hope that the publicity associated with this high profile case will help business leaders to understand the factors that they need to consider in order to effectively manage health and safety risk in their organisations.”
In June 2015, two carriages on the Smiler rollercoaster ride at Alton Towers crashed, leaving passengers trapped for four-and-a-half hours.
Four people were seriously injured in the crash. Leah Washington and Vicky Balch both had to have a leg amputated, while Joe Pugh had to learn to walk again and Daniel Thorpe had serious leg injuries.
The carriage collided with a stationary carriage on the same track after an internal investigation at the theme park found that ‘human error’ was to blame in over-riding a computer system in allowing a carriage to continue on the track and crash into an empty carriage.
In Stafford Crown Court after the incident, the prosecuting barrister for the Health and Safety Executive (HSE), Bernard Thorogood said the crash equated to “a family car of 1.5 tons having collided at about 90mph.”
He explained how a test carriage had been sent around the 14-loop ride but had got stuck because of a headwind with speeds of up to 46mph.
The theme park’s procedures stated that the ride should not be operated if there was a “constant” wind speed of more then 34mph.
Unaware that the test carriage had got stuck, engineers overrode a ‘block stop’ on the computer system, which they believed had halted the ride in error and sent a full 16-seater carriage around the track and into the back of the empty carriage.
In court, Mr Thorogood said the fault was with the employers, not with the individuals, who weren’t given a system to follow to deal with this problem n the track.
“The fault is with the defendant for not devising a scheme, for not guiding the work of the engineers,” he explained.
The prosecution laid out the timeline of events in court:
- 13:00 – Fault reported;
- 13:51 – Crash happened;
- 14:08 – First 999 call;
- 14.09 – Community first responder on site;
- 14.37 – Ambulance and air ambulance arrive;
- 14:57 – Police arrive.
Changes at Alton Towers
Following the crash, Alton Towers introduced a number of changes including:
- A lead engineers to be responsible for decision making on fixing faults;
- A minimum number of passengers on each carriage to help the ride complete loops;
- The ride to be closed when winds reach speeds of 35mph;
- Improved access to “pit” section of the ride to access passengers;
- New emergency stop button installed at ground level.
The prosecutor raised a number of factors that might affect the level of fine imposed by the court, including:
- How long it took to treat the 16 victims in the rollercoaster carriage;
- How hard it was for emergency services to get on site;
- The first people on the scene were unable to see those injured and didn’t realise how severe it was. This meant that the victims were stuck on the ride, unable to understand the slowness of the response;
- The number of those exposed to actual harm, included not just those on the carriage at the time, but the thousands that used the ride before the crash occurred;
- Previous legal action against Merlin Entertainments after a worker fell from a ride at Legoland in 2011, which the prosecution says was a “wake-up call missed”.
Simon Antrobus, the barrister representing Merlin Entertainments said the company accepted its responsibility and that the accident was avoidable.
The company also apologised for the way it handled the rollercoaster crash in the media.
Simon Antrobus said it was wrong to blame human error in the press release when the crash happened.
He said the company wishes its “response had been more human, than corporate”.
After being asked by the judge whether anyone had resigned over the incident, Mr Antrobus conferred with his clients and answered: “No.”
Mr Antrobus has defended his client’s character saying it is regarded as “the most reputable operator in this field”.
He added that the company had “made a serious failing, but otherwise is of good character”.
He also said the two previous health and safety breaches in 2007 and 2012 were “not very relevant” to this case.
In presenting the mitigating factors, Simon Antrobus said:
- The ride was properly designed and independently assessed;
- There were a number of safety measures in place including CCTV, although there were blind spots;
- The firm had assumed engineers attending a fault would be able to confirm the presence of another carriage by going trackside, but accepted it should not have been left to assumption – instead there should have been a formal procedure;
- A good safety record can be advanced in this case;
- There was a prompt acceptance of responsibility;
- The chief executive apologised on national television on the day of the incident.
Wind and likelihood
Simon Antrobus told the court that an alarm should have gone off on the Oblivion ride, situated next to the Smiler ride, when wind speeds went above 32mph. However, this failed to go off.
He said that new wind speed measures had been installed specifically for the Smiler ride.
Judge Chambers suggested that some of this was foreseeable.
Simon Antrobus said it was a rare experience, while the judge said he found that difficult to accept.
Continuing his defence, Mr Antrobus said the chances of the crash were highly unlikely. The ride had been operated three million times before the crash occured.
“While safety measures had been in place, these have been increased since the crash,” said Mr Antrobus.
Not enough had been done in training technicians, said the defence barrister. They were trained by the manufacturer, which Merlin said was thought to be the best approach, Simon Antrobus said.
The court heard that only one of two electrical engineers who attended the crash on the day had trained with the manufacturer.
The court heard that Merlin Entertainments has a turnover of £500m.
With the new sentencing guidelines, health and safety offences are attracting much higher fines.
According to the new sentencing guidelines, fines are divided out according to ‘harm category’ and ‘culpability’.
Merlin disputed the Health and Safety Executive’s claim that the company had “very high culpability”, urging the judge to view it as “medium to high”.
Extracted from the Sentencing Council’s definitive guidelines to Health and Safety offences, Corporate Manslaughter and Food Safety and Hygiene offences.
The Safety Conversation Podcast: Listen now!
The Safety Conversation with SHP (previously the Safety and Health Podcast) aims to bring you the latest news, insights and legislation updates in the form of interviews, discussions and panel debates from leading figures within the profession.
Find us on Apple Podcasts, Spotify and Google Podcasts, subscribe and join the conversation today!