With the Health and Safety Executive (HSE) serving a further two
Improvement Notices at a second Edinburgh company this month,
Legionella is continuing to dominate health and safety headlines.
First, an Improvement Notice was served on North British Distillery
Company Ltd for failure to devise and implement a sustained and
effective biocide control programme in one of its cooling towers.
More recently, Macfarlan Smith Ltd has been served with two
Improvement Notices requiring the thorough cleaning of one of its
cooling towers and provision of access for inspection and
maintenance of said tower.
The Edinburgh outbreak has unfolded almost simultaneously with the
fining of a Lancashire holiday camp for a breach of health and
safety obligations in a separate, unconnected outbreak. In this
case, Pontins, which went into administration in 2010, was fined
just £1,000 after two guests contracted Legionnaires'
disease whilst staying at the Lytham St Annes branch. Margaret
Coote stayed in chalet 229 during the course of March 2010 and fell
ill the same month, later recovering. Karen Taylor stayed in the
same chalet during the course of July 2010 and unfortunately did
not recover.
Pontin's own records indicated temperatures in the relevant
storage facilities were below HSE recommended levels, providing an
optimum environment for the spread of bacteria. These readings were
fed through to site advisors but despite several warnings
thereafter no remedial action was taken. During court proceedings
the jury also heard from Kevin Fielding, a water treatment and
legionella management contractor, hired by Pontins to conduct
annual risk assessments of the water systems in question. He
provided that, during the last batch of assessments prior to the
two outbreaks in question, concerns were raised with the water
storage tank that supplied water to chalet 229 insofar as it was
not fully compliant with by-laws governing plumbing systems and
there was a "medium degree of accumulated sludge within the
tank which may have assisted bacteria." A thorough clean was
recommended.
The Crown Prosecution Service determined there was insufficient
evidence to charge Pontins with corporate manslaughter. Pontins
were convicted with breaching ss.2(1) and 3(1) of the Health and
Safety at Work Act 1974 due to a failure to ensure the health of
its employees and exposing members of the public to risks to their
health from its undertaking. Pontins plead not guilty but offered
no defence or legal representation at Preston Crown Court. Upon
conviction Judge Anthony Russell stated that "serious
injury to health was foreseeable" and that there were
"serious management failings." In fining Pontins
the nominal sum of £1,000 plus costs of £10,000 (which
will not be enforced) Judge Russell was keen to point out that, had
the business been making profits, a fine of £500,000 would
have been more appropriate. In making his decision he provided that
he was "satisfied that there [were] no assets from which
any appropriate financial penalty could be met...If I were to
impose a fine of the appropriate amount, all that would happen is
that, if there are any funds, the distribution to others who have
suffered at the hands of this company, namely legitimate creditors
would be diminished or extinguished because any fine would go to
the Exchequer."
Bearing in mind the outcome of the Pontins outbreak, it will be interesting to see what consequences arise out of the Edinburgh outbreak going forward.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 22/06/2012.