Legal spotlight - October 23

TRANSPORT FOR London (TfL) was fined £10 million for health and safety failures which led to the death of seven people and dozens more injured when a tram, travelling in poor weather and at three times the permitted speed, overturned approaching Sandilands junction in Croydon on 9 November 2016. Of the 69 passengers on the tram, only one escaped injury.

Following an investigation and prosecution by industry regulator, the Office of Rail and Road (ORR), TfL – which owns and maintains London’s transport infrastructure – and the network operator, Tram Operations Limited (TOL), pleaded guilty to a series of offences under the 1974 Health and Safety at Work etc. Act. Alongside TfL’s £10m penalty, TOL was fined £4m.

Failure to heed prior warnings and previous near misses were a significant factor in the case. The ORR’s investigation into the incident revealed that neither company had performed a suitable or sufficient assessment of the risks of a high-speed derailment on the network. The court also heard that an engineer had raised concerns about insufficient lighting in the Sandilands tunnel as far back as 2007.

The judge’s comments about culpability and harm are also particularly noteworthy for stakeholders. Both TfL and TOL sought to argue that their culpability was medium, according to the Sentencing Council’s Definitive Guideline. They also submitted that a report into the disaster by Rail Accident Investigation Board (RAIB) should be an important part of this exercise. 

The judge, Mr Justice Fraser, assessed culpability as high. He said the RAIB report was not intended to assess culpability and was prepared without the benefit of considerable expert evidence which had been led at trial. Mr Justice Fraser said that he was far better placed, having conducted the trial, to assess all the evidence relating to culpability. A reminder that whatever parties may say about culpability – including any agreement reached by them – the matter is one for the court to determine.

Nor did the court agree with the defendants’ assessment of risk of harm. Whilst the prosecution said that this was a ‘high’ likelihood case, the defendants’ position was that it was a ‘low’ likelihood case. Mr Justice Fraser sided with the prosecution, stating that it was “undoubtedly an accident waiting to happen, quite literally”.

He also rejected arguments that the fact that many years had passed without such a disaster pointed to a lower risk of harm, considering that simply down to the fact the combination of circumstances had not occurred prior to November 2016.

Of particular note is the court’s rejection of comparisons with similar cases in this assessment exercise as indicative of risk of harm. It emphasised that the assessment of risk of harm is a fact-specific evaluation for the court.

The court also found that TOL did not fully appreciate the extent of its obligations. TfL was responsible for the infrastructure of the tram network, and TOL responsible for running the tram company. According to its operating agreement with TfL, TOL was required to report to TfL on safety.

The court noted that TOL considered that it was not its responsibility to report on risks and safety improvements relating to the infrastructure. Not only did the court consider this contrary to the operating agreement, but also an “unacceptable attitude to life and limb”.

Parties must ensure they fully understand and are able to implement safety-related contractual obligations. In this case, the lack of understanding meant that an opportunity to flag required safety improvements was missed, with catastrophic consequences.

Mr Justice Fraser also criticised TOL’s incident reporting system, under which drivers were expected to self-report issues they encountered. The judge described this system as “not a safe one”. The court found that many drivers were reluctant to self-report incidents due to the potential adverse consequences – including disciplinary proceedings – that sometimes followed if they did. 

A culture of compliance must be front and centre in organisations if they are to meet their health and safety obligations. This includes encouraging a ‘speak up’ environment where employees and others feel able to report incidents, without fear of reprisals. In addition, companies must ensure that near miss and incident recording systems incorporate a mechanism for action to be taken when serious near misses arise, or when prior incidents indicate a serious safety problem.

The court in this case also cited Health and Safety Executive guidance which makes clear that human factors must be considered “as a distinct element” to be “recognised, assessed and managed effectively” to control risks.

Ultimately, failure to act on previous incident information is going to become harder to defend as the world moves into a data-driven age in which companies are increasingly expected to have mechanisms in place to harness and utilise safety data for employee and public safety.

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com