Carlos Correa Palacio was struck while crossing the road on his way home from work just one month into his new job as a bus driver in the capital.
Crash records show two warning alarms sounded before the collision but they also showed the tram was travelling faster than advised and the emergency brake was only applied after it was too late.
The tragedy sparked an immediate change that saw trams fitted with louder bells and pedestrian crossings were cleared of all plant life and structures to improve visibility.
But despite the changes, devastated relatives are still waiting to hear if the Crown Office and Procurator Fiscal Service(COPFS)will prosecute Edinburgh Trams and said the ongoing silence is adding to their grief.
In a statement, father-of-two Carlos’ grieving family, including his widow Claudia Patricia Betancur Rodas, said: “We are at our wits end. We’ve waited and waited and put our faith in the justice system but it gets to a point where you can no longer assume that ‘no news is good news’.
“We need prosecutors to tell us what is going on. If there is a delay, then why? If they need more evidence, then what evidence?
“Covid cannot be the reason behind this delay as our dad died 18-months before the pandemic – surely that’s ample time for the COPFS to have a grasp of the facts?”
Carlos was struck while using a pedestrian crossing near Stenhouse Drive in Edinburgh around midday on September 11, 2018. Despite a swift emergency services response he was declared dead at the scene.
The Rail Accident Investigations Branch (RAIB) found the tram reached a speed of 41mph and 73 metres before the crossing the driver “removed power and applied light service braking”.
Investigators established this was the point where Carlos first became visible and until then he could not be seen due to bushes on the footpath.
At 53m from the crossing the driver activated a warning bell consisting of three separate ‘dings’.
When Carlos did not react the driver then applied the emergency brake – at this point the tram was 18m from the crossing and travelling at 38mph.
Using the emergency brake automatically sounded an additional emergency horn and this time Carlos – who was halfway through the crossing – appeared to hear this horn as footage shows he tried to turn back from where he set off.
Sadly it was too late and Carlos was hit by the tram – at the point of the collision it was travelling at 33mph and it did not come to a stop until 32m beyond the crossing.
The RAIB concluded back in February 2019: “The evidence indicates that from the point where he [the deceased] would have had a clear view of the approaching tram, he was not looking out for trams.
"The investigation found that although the tram driver had used the tram’s bell to sound repeated warnings on the approach to the crossing, this audible warning was not sufficiently loud for it to be heard and acted upon by the pedestrian until it was too late.”
The RAIB made four recommendations following its probe into the tragedy.
It called on Edinburgh Trams Ltd to improve the audibility of warning devices and identify risks of off-street pedestrian crossings and it called on the Light Rail Safety Standards Board to improve the guidance of warning bells and the layout of tram crossings.
The delay in the criminal investigation means Carlos’ family has now turned to civil law firm Digby Brown Solicitors to investigate.
The family added: “We are heartbroken and exhausted and it just feels like no one is prepared to explain, apologise or even ask if we’re okay unless it’s done via the courts.
“What is going on at the COPFS that means it takes more than three years to make a decision?
“We need to know what is going on and make sure no others suffer like this in the future.”
Simon Hammond, Partner at Digby Brown in Edinburgh, added: “The RAIB report has been available for more than two years so it is easy to see why the family of Mr Correa are frustrated by the lack of action.
“Most people understand that it’s ‘the not knowing’ that causes the most stress so we will continue to support the family and help them secure the answers and recognition they deserve.”
A COPFS spokesperson said: “We appreciate the impact the time taken to complete death investigations can have on those who have lost a loved one.
“The ongoing investigation into the death of Carlos Correa involves detailed and careful consideration of complex issues.
“The case team have been in contact with his family and will continue to provide updates on any significant developments.”