Following the £5 million fine imposed on Merlin Attractions Operation Limited for Health & Safety failings in the Smiler crash, David Sawtell discusses the legal importance of facility management and the lessons that should be learnt from the case.
The rollercoaster collision on the Smiler ride at Alton Towers in June 2015 led to the owners of the theme park, Merlin Attractions Operation Limited, being fined £5 million and ordered to pay costs of just under £70,000. Sixteen people were injured with the incident being reported internationally. The release by the Health and Safety Executive of some of the expert evidence about the incident throws a spotlight on the construction and health and safety law implications that arise from the operation of multi-million pound facilities and the need for appropriate facility and operational management.
On the morning of the crash, the ride team decided to add a fifth train into the ride while there were no passengers. The crash occurred during high winds, causing one of the ride trains to ‘stall’ and to roll back into a track section it should have cleared. Electrical engineers attended but were not told that a fifth train had been added. When a train with passengers was correctly stopped by the ride, an engineer failed to notice the extra, stationary, train on the track. The ride’s safety system was overridden and evacuation mode engaged, allowing the passenger train to collide with the empty train.
Smiler is the world’s first 14 looper roller coaster. It has been quoted as costing £18 million. It was manufactured by the experienced and world renowned Gerstlauer. The HSE expert report considered its design to be safe. Importantly, the report also concluded that the ‘ride designers have applied the principles of safety engineering and the science of Ergonomics to the interface between the ride control system and its human operators’. However, the author warned that: ‘However well a rollercoaster may be designed, with current technology, significant human intervention will be required, and it is vital that this is done safely’.
In particular, the HSE expert focussed on ‘Task Analysis’, a process by which systems of work are clearly reviewed, defined and standardised. The Operations Department manual for the Smiler ride had the hallmarks of being produced as a result of task analysis, detailing all the sequences of all the processes that a ride operator was expected to perform. This was seen to be a reasonably adequate system of work.
In sharp contrast, the HSE heavily criticised the arrangements for the Technical Services department. Training tended to be delivered by observation of and working with existing engineering employees. This approach is not systematic and leads to staff with different degrees of knowledge. To give an example of where this approach is inadequate, machinery operated even by skilled and qualified engineers has to have guards to prevent injury.
A culture had grown up in the Technical Services staff that otherwise clear fault signs received from the ride control system were unreliable and that their own judgement and decision making was inherently more reliable. To quote the report, ‘The problem then arises that where individuals lack hard rules of behaviour as would be provided by a written safety of work, they tend to become habituated to false alarms, and tend to assume that all alarms will be false’.
It was this kind of assumption that led to the methane gas explosion that killed 16 people in Eckersley v Binnie [1955-95] PNLR 348 and the finding of negligence in respect of the design civil engineers. The Court of Appeal upheld the finding that the designers failed to exercise reasonable care in assessing the risk of encountering methane, the presence of which in significant, though not necessarily dangerous, quantities was reasonably foreseeable as a matter of possibility. In essence, because they had not previously encountered problems with methane before, they (in the event dangerously) assumed that it would not be a problem with this design.
As facilities become increasingly complicated, particularly with more sophisticated use of information technology and the internet of things, the interrelationship between design, construction and facility operation and management will become increasingly important. This was recognised when the 2013 RIBA Plan of Work was released, introducing a new Stage 7 (in use) that requires designers to consider the operational aspects of their structures. The Government Soft Landings Policy introduced in 2012 was adopted to align the interests of those who design and construct an asset with those who subsequently use it.
Practitioners should be aware of the need to ensure that handover consists of more than simply delivering the keys and the operating manual. Especially when dealing with sophisticated infrastructure, the appropriate training of all operators needs to be considered. This is something that lawyers considering procurement or framework agreements need to factor into their drafting.
One of the failings identified in the HSE report was that Merlin’s audit process had failed to identify the shortcomings in the approach of Technical Services. As noted by the HSE report, simply recruiting trained and experienced staff is not enough. This was picked up on in the civil aviation field following the United Airlines Flight 173 crash, where a DC-8 crew ran out of fuel while troubleshooting a landing gear problem in 1978. As a result, crew training was radically overhauled and Crew Resource Management adopted to reduce communication barriers in the cockpit and to solve problems more efficiently. Experience is no substitute for systematic training.
When practitioners consider a health and safety breach arising from possible human failure, it is not enough for a potential defendant to point to the fact that their staff were trained or qualified. It is necessary to consider whether their training was appropriate for the particular task or facility in question.
Modern structures such as Smiler are increasingly complicated and dependent on computer assisted technology. Design and handover needs to take into account the interface with the human operators, who will themselves need to be provided with appropriate training. This is often neglected in typical procurement and construction contracts, with handover and facility management typically being treated as an afterthought. Careful drafting and advice will ensure a sensible after-care package.
David Sawtell / 3rd Oct 2016
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