Case study: Warwick Castle (2012)
Relevance of this case
In 2017 I used this case as an illustration of how the Sentencing Guidelines had increased fines. Merlin Entertainment had recently been prosecuted for an accident at Alton Towers in 2015, which led to multiple serious injuries, including two young women who each had a leg amputated. Merlin were fined £3.5 million (and paid undisclosed damages to the injured parties). This contrasted with an earlier fine for Merlin of £350,000 for an incident where a man died after he fell from a bridge with a low parapet. The contrast is even greater when you consider that in the later case Merlin’s fine would have been more if they had not pleaded guilty early on.
However, I think the case has a wider learning point than illustrating the increase in fines arising from the Sentencing Guidelines. This relates to questions of foreseeability of risk and practicability of controls, particularly in relation to heritage properties.
The accident
On 9 December 2007 72-year old George Townley was visiting Warwick Castle with his partner and her family. Around 4.30pm he left the court yard and walked over the Bear and Clarence Bridge. He seems to have stumbled or tripped, and fell over the parapet wall into the dry moat below. He suffered head injuries, but some reports suggest he died from a heart attack.
The wall was less than 40cm high, and the moat over 4 metres deep.
The defence
The defence argued that there was no material or foreseeable risk for people crossing the bridge under normal conditions:
- Many millions of people had crossed the bridge since Merlin took ownership in 1978. Between 1978 and 2015 more than 20 million people had visited the castle without a single reported accident or near miss on the bridge.
- Environmental Health Officers and the Head of Building Control at Warwick District Council had used the bridge, without raising any concerns.
Although the term ‘gross disproportion‘ is not documented in the ruling, some of the arguments can be seen as indicating that permanent barriers were seen as a gross disproportionate response:
- Although the hazard was mentioned on the Entertainment Licence, this only required barriers to be placed (temporarily) when there were events which could result in more than 2,200 people in the castle courtyard.
- Guidance from Managing Visitor Safety in the Countryside recognised that erecting barriers might be undesirable for scheduled monuments and listed buildings.
- While the Bear and Clarence Bridge had been identified as a hazard in 2003, the risk of injury was described as ‘remote’ with a figure of 1 in 4 million assigned.
The judgement doesn’t give the units for risk. 1 in 4 million visitors falling into the moat would be unacceptable in my view, given the visitor numbers; 1 in 4 million days would be about one in 11,000 years, which I could probably live with.
In mitigation
- Merlin took health and safety seriously, consulting staff and allocating resources to safety. There was a system for risk assessment, and evidence of over 200 written risk assessments.
- Temporary barriers were erected immediately after the accident, and Merlin co-operated fully, committing to erected a permanent barrier.
The prosecution
The hazard was foreseeable:
- The height of the parapet walls and the depth of the drop made this accident foreseeable.
- The bridge had been identified as a hazard in a public entertainment licence condition in 1995.
- It had been identified as a hazard in a fabric risk survey in 2003.
Practicable actions had not been taken:
- A site-specific risk assessment had never taken place for the bridge (until after the accident).
- The site safety officer hadn’t been told about the 1995 or the 2003 findings.
- Warning signs could have provided a warning of the ‘masked drop’
- The 2003 report had raised a question over whether side barriers were required for the bridge during normal opening times and there was no evidence this had been considered.
Verdict
Warwick Castle were found guilty under two charges:
- (HASAW) Health and Safety at Work Act S3(1) (failure to ensure the safety of people other than employees)
- (MHSW) Management of Health and Safety at Work Regulations 5, for failing to act on the results of a risk assessment by putting in appropriate preventative and protective measures.
The fines were £300,000 for HASAW, £50,000 for the MHSW and costs of £145,000.
There was an appeal, but Merlin’s case was dismissed.
You can read the full judgement at the appeal on bailii.org
