Castle operator fails in “excessive fine” challenge
The company that operates Warwick Castle has failed in a bid to overturn a six-figure fine imposed after a member of the public died in a fall from a bridge.
George Townley, a 72-year-old grandfather, visited the Castle on 9 December 2007. At about 4.30 pm he was leaving, via the Bear and Clarence Bridge, when he stumbled and tripped over the parapet wall. He fell headfirst into the dry moat below, and suffered fatal head injuries.
A trial in April this year concluded with Merlin Attractions Operations Ltd being found guilty of two health and safety offences. It was fined £300,000 for a breach of s3(1) of the HSWA 1974 and £50,000 for a breach of the MHSWR 1999.
Merlin appealed the sentence, submitting that it did not fairly reflect, and was disproportionate to, the seriousness of the offences – given a lack of aggravating features identified in the Sentencing Council’s ‘Guideline on corporate manslaughter and health and safety offences causing death’.
It also contended that the fine was “manifestly excessive” because the trial judge acknowledged that its failure to act on previous warnings that the bridge was a hazard was “a blind spot in the management system”.
In a 17-page judgement handed down on 13 December, which followed a Court of Appeal hearing on 2 August, Merlin’s appeal against the fine was dismissed.
The Court held that the trial judge was clearly entitled to conclude that there had been a serious breach of Merlin’s health and safety systems in relation to the bridge.
The breach had resulted in an obvious danger of at least serious injury (not so much in relation to adults, but in relation to children) to which a large number of people had been exposed over many years. This danger had been the result, in part, of a failure to react appropriately to advice given in 2003.
The appeal judges said: “The appellant fell seriously short of the applicable standard – it failed over a period of many years to carry out the necessary mandatory risk assessment of the Bear and Clarence Bridge which, over those years, was used by millions of people (and thus, to that extent, involved a public element).
“Such risk assessments are the foundation-stone requirement of ensuring compliance with the applicable standard; and, if a risk assessment had been carried out, then barriers would have been erected, the obvious risk of serious injury would have been eliminated, and Mr Townley’s death would have been avoided.”
Merlin chose not to provide the court with evidence as to its finances. The appeal judges said that this decision entitled the trial judge to infer that it was able to pay any penalty that he chose to impose.
Commenting after publication of the written judgement, Councillor Michael Coker, portfolio holder for the environment at Warwick District Council, said: “By rejecting this appeal, the Court of Appeal has vindicated the Council’s action in taking the prosecution.
“It is essential that employers maintain suitable health and safety standards in their workplaces. When companies substantially fall below the required standard, it is important that such companies, however large or well thought of, are brought to account.”
Merlin Attractions Operations is part of Merlin Entertainments, one of the world’s largest visitor-attraction operators. The parent group’s revenue for the 12 months up to 25 December 2011 was £928.4m, with an operating profit of £222.5m
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