A tram company has been fined £240,000 after it failed to learn from a near miss two years before a pedestrian was killed at a crossing, a court has heard.
Bus driver Carlos Correa Palacio, 53, died after he was struck by a tram as he walked across the Saughton Mains crossing in Edinburgh on September 11 2018 as he returned from work.
Edinburgh Trams Limited admitted a breach of health and safety legislation in a hearing at Edinburgh Sheriff Court on Thursday and was fined £240,000, the Crown Office said.
Prosecutors said there were no issues with the tram driver, and the vehicle worked as it should do.
There had been a near-miss in November 2016 but it “failed to result in any action” from Edinburgh Trams Limited, prosecutors said.
The tram driver first saw Mr Correa 73 metres from the crossing, but he was unaware it was there.
At 53 metres from the crossing, the driver sounded his bell and began to slow the tram, and sounded the bell three more times over the next 27 metres.
The driver applied the emergency brake approximately 18 metres from the tram crossing, which caused the tram warning horn to automatically sound, however, Mr Correa was killed in an “avoidable” crash.
His family branded the delay in bringing the case to court “excessive” and “unacceptable”.
They urged both the Crown Office and Procurator Fiscal, and the Scottish Government, to learn from it.
A Correa family statement released via Digby Brown Solicitors said: “The loss of Carlos has been agonising and our pain has only been worsened by the nearly five years we had to wait for justice, which we find excessive and unacceptable.
“We welcome the fact that Edinburgh Trams has accepted responsibility but the conviction does not bring us any closure – it only ends the criminal process which has been traumatic in its own right.
“It should not have taken this long to prosecute because as far as we can see all the information needed to secure a conviction has been in place for years already.
“So we call on COPFS (the Crown Office and Procurator Fiscal Service) and Scottish Government to investigate and reform in the hope of ending avoidable delays so victims and bereaved families are not made to suffer needlessly.
“We’d like to thank our family, friends, our legal team in both the civil and criminal cases and VIA (Victim Information and Advice service) for their support and while there are lessons to be learned in tram safety and justice support we hope the relevant authorities do more than just take notice – we hope they take action.”
They were awarded a six-figure sum for damages, the solicitors said.
Prosecutors said there had been no assessment of the foreseeable risk to pedestrians at the Saughton Mains crossing from an approaching tram prior to this incident, despite a near miss in November 2016.
The court heard Edinburgh Trams Limited failed to carry out a sufficient risk assessment of the layout of the crossing, and to ensure it provided sufficient notice and warning to pedestrians.
The company failed to assess the loudness of audible warning devices, or the emergency braking distances of trams approaching the crossing.
The absence of any written risk assessment was made worse by the failure to regularly review which meant the original error went unnoticed, according to the Crown Office.
The investigation found there were no issues with the driver and he had responded to the situation in accordance with his training, and the tram was in working order and the braking system was functional.
COPFS health and safety investigator, Debbie Carroll, said: “Carlos Correa lost his life in circumstances which could have been avoided had risks been recognised and appropriate control measures put in place.
“Edinburgh Trams Limited’s failure to assess risks to pedestrians using the crossing resulted in Mr Correa’s death.
“This prosecution should remind duty holders that a failure to manage and implement effective measures can have fatal consequences and they will be held accountable for this failure.
“Our thoughts are with Mr Correa’s family at this difficult time.”
A spokesman for Edinburgh Trams said: “We have nothing further to add beyond what was said on our behalf at Court today and want to express again our deepest sympathies to the family of Mr Correa.”
A spokesperson for COPFS said: “We appreciate the impact the time taken to complete investigations and court proceedings can have on those who have lost a loved one.
“The multi-agency investigation into the death of Carlos Correa involved detailed and careful consideration of a large amount of information and complex issues.
“The case team has remained in contact with Mr Correa’s family throughout this process and our thoughts are with them at this difficult time.”
A Scottish Government spokesperson said: “Our thoughts are with the family of Carlos Correa.
“The Scottish Government is supporting the recovery of the criminal justice system from the delays created by the pandemic.”