An outbreak of Legionnaires’ disease can lead to severe discomfort, even death, to a victim. To those responsible for health and safety of water systems, the legal obligations may also be severe.
The Legal Framework
Under the Heath & Safety at Work Act 1974 every employer is under a duty:
"To ensure, so far as is reasonably practical, the health, safety and welfare of all employees" (section 2)
"To conduct his undertaking in such a way so as to ensure, so far as is reasonably practicable, that persons not in his employment are not exposed to risk to their health and safety" (section 3).
In addition, regulation 3 of the Management of Health & Safety at Work Regulations 1999 directs that every employer shall make a suitable and sufficient assessment at the risk to the health and safety of
• employees to which they are exposed at work; and
• persons not in his employment arising out of or in connection with the conduct of his undertaking.
Such a need to conduct risk assessments is also supported in the Control of Substances Hazardous to Health Regulations (COSHH) 1999 together with an obligation to control micro organisms including legionella.
In a HSE circular to local authorities in 2000, guidance was given as to when a prosecution may be pursued. This would be considered where:
• a water system which may gave raise to a risk is found
• a suitable and sufficient COSHH assessment has not be carried out
• the necessary precautions to control the risks have not be taken in accordance with the Approved Code of Practice & Guidance: Legionnaires’ disease (ACOP) known as "L8".
In R v Science Museum (1993) testing identified the level of legionella was high and the system of treatment had broken down. Although no outbreak of Legionnaires’ disease occurred, there was a "risk" which justified the successful prosecution of the Defendant.
In R v Davies (1999), the owner of the Defendant company had appointed a health and safety officer to oversee the water systems. In turn, a treatment company was contracted to treat the water. Whilst delegating the treatment of water to a third party is anticipated within "L8", such action does not automatically absolve the employer of responsibility. In Davies, it was suggested "at all stages it must be for the employer to supervise the independent contractor and not for the independent contractor to supervise the employer". The Defendant was convicted with the Court critical of the degree of supervision and delegation.
In cases where there is no death as a result of an outbreak, prosecutions are largely brought against the company with fines upon conviction in the Magistrates or Crown Court. Despite the requirement to produce financial information to the Court by a Defendant, pressure remains to increase fines upon convicted Defendants.
Where death has occurred as a result of an outbreak of Legionnaires’ disease, the prosecuting authority (the police) is under pressure to secure a conviction for involuntary manslaughter.
In such a case, the prosecution must establish that:
• the Defendant owed a duty of care
• the Defendant breached that duty of care
• it was that breach that caused the death
• the breach can be considered gross negligence.
Gross negligence has been summarised as:
• an indifference to an obvious risk of injury to health; or
• foresight of a risk coupled with a determination nevertheless to run it; or
• appreciation of the risk coupled with an intention to avoid it but with a high degree of negligence in an attempt to avoid it.
Should no adequate risk assessment be undertaken or no proper action taken following such a risk assessment, a Defendant is open to the risk of such prosecution. Further, the police may prosecute any person (in addition to the company) that they consider to be guilty of gross negligence. Recent cases have identified prosecutions against directors, managers and even maintenance staff.
The issue of corporate killing is likely to remain controversial. The present law in this area is complicated. Reforms are due with the next Queen's Speech likely to reveal plans for a new legislation in this area designed to lead to more successful prosecutions.
Should you have any concerns regarding your systems of work, an investigation and review should be conducted immediately. Risk assessments and all paperwork should be brought up to date. As anticipated in "L8", a company should accept limitations and seek appropriate professional advice and assistance and identity and discharge their obligations under the legislation. The cost incurred will be far less than the cost incurred should you be prosecuted.
Should any prosecution be intimated or there be a suspicion of an outbreak of Legionnaires’ disease as a result of your undertaking, immediate legal advice also should be obtained.
Ford & Warren Solicitors
T: +44 (0)113 2436601