MARK DANIELS - Adviser on visitor and occupational health and safety at historic buildings, parks, gardens, coast and countryside

Commentary

The Warwick Castle case

Commentary 25th April 2012 (updated 30th April, 2nd May and 5th September)

This case concluded on 24th April 2012. Merlin Attractions Ltd. was fined £350,000 and costs of £145,000 were imposed after it was found guilty of one charge under HSW Act and one under the Management of Health and Safety at Work Regulations. This was at the conclusion of the defended case at Leamington Crown Court. In December 2007, an elderly man was crossing the Bear and Clarence Bridge at the castle when he tripped and fell over the low parapet of the bridge into the dry moat below, sustaining fatal head injuries. The charges related to the failure to carry out a suitable and sufficient risk assessment, and failure to take sufficient measures to protect visitors crossing the bridge.

In offering any comment, I should make it clear that I have had no involvement with this case other than last year to offer an expert witness for the defence examples of other locations (there are many) where historic bridges have little or no edge protection. Also, I have no access to any papers relating to this case, and any comments are made primarily on the basis of newspaper reports covering the trial, and in particular on the quoted remarks of counsel, the judge and the EHO for Warwick DC. My views may change as more information and opinion emerges over time.

Firstly, I'm slightly surprised, given the public profile of the defendant and the size of the fine, that this case didn't receive greater prominence in the media - coverage was largely restricted to local media and it didn't appear to have been picked up by national media to any great extent; there is an exchange of comments added to an online article produced by SHP (Safety and Health Practitioner).

The arguments in court appear to have focused on whether there was a material risk to visitors, what the extent of that risk was, and the role of hindsight and foresight in the case. Prior to any accident, a risk assessment is an exercise in foresight in which the level of use of the bridge and the lack of accident history would have been relevant.

There appears to have been a good health and safety system at the castle, but there were references to the lack of a risk assessment for this particular feature of the site. The judge said that the bridge constituted something of a blind spot. It appears that a risk assessment was carried out the day after the accident, and temporary barriers put in place. The EHO was quoted as saying that the accident was foreseeable and would not have occurred if a suitable and sufficient risk assessment been undertaken which in the council's view, would have identified the need to provide barriers to the sides of the bridge.

This raises a number of questions:
- does this suggest that a low parapet is unacceptable for any fall from height risk (in a historic building or structure), regardless of the extent of visitor use and numbers?
-  is the extent of the fall from height relevant?
- if a risk assessment had been carried out and having taken account of the number of visitors using the bridge, the lack of accident history, the extremely low level of risk and the importance of conservation objectives, concluded that the low parapets were an adequate precaution, would the council's view have been any different?
- if the council's view at previous visits was that the risk was sufficiently great, should it have taken enforcement action prior to the accident?
- what are the implications for owners and managers of historic sites in future - will all fall from height risks have to be provided with barriers? Or are no or low parapets still acceptable in certain situations depending on visitor numbers, obviousness of the hazard, historical importance and so on?

Perhaps this case has more distance to run yet. The commentary continues on the next page.

P5241314
Bear and Clarence Bridge Warwick Castle

Bear and Clarence Bridge, Warwick Castle

Exeter Medieval Bridge

P7110549
P7110550

Bridge in Jesmond Dene Park, Newcastle-on-Tyne

P8110307
P8110309

Fountains Abbey

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