Barrister Robert Spicer reports on a case showing the levels of fines that may be imposed following an outbreak of Legionnaires’ disease.
What is Legionnaires’ disease?
Legionnaires’ disease is a type of pneumonia caused by bacteria associated with water systems in large buildings. If the disease is not treated, it can cause respiratory failure and death. Legionella pneomophila is the bacteria normally responsible for the disease and, it is believed, can carry 150 metres. Low concentrations of the bacteria exist in most open water systems without posing a threat of infection.
What causes Legionnaires’ disease?
Proliferation of the bacteria can be caused by the presence of sludge, scale and algae, which provide necessary nutrients — and by an appropriate temperature.
Infection results from inhalation of water droplets containing the bacteria. Water systems which present the greatest risk are cooling towers, air conditioning plants and industrial cooling systems. Whirlpools and spas, showers and fire sprinkler systems are also a risk. The risk of infection can be minimised by good engineering practice in the design, construction, operation and maintenance of water installations.
Between 100 and 200 cases of Legionnaires’ disease are reported to the Public Health England (PHE) Centre of Infectious Disease Surveillance and Control every year. Reporting is voluntary and the actual figure may be higher.
What are the penalties for Legionnaires’ disease?
The recent Court of Appeal decision in the case of Faltec Europe Ltd v Health and Safety Executive (2019) illustrates the level of fines which may be imposed in relation to exposure to, and outbreaks of, the disease.
The facts were that Faltec, a car parts manufacturing company, appealed against fines imposed following its plea of guilty to three health and safety offences. The first two offences concerned outbreaks of Legionnaires’ disease in the company’s employees and the local population around its place of business. The third offence concerned an explosion in a flocking machine on the company’s premises which caused injury to an employee.
The bacteria had developed in the dead legs or a length of capped-off pipe in the company’s cooling tower. No effective action had been taken by the company despite communication from the Health and Safety Executive (HSE). A subcontractor was engaged to carry out biocide dosing but Faltec had failed in its oversight of the subcontractor and a written scheme containing safe operating parameters was lacking. Four employees and one local resident contracted Legionnaires’ disease. One victim was put into an induced coma.
The company pleaded guilty to three offences in the magistrates’ court and was committed to the crown court for sentence.
The crown court applied the Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline and imposed a total fine of £1.6 million. This comprised £800,000 for the first two offences and £800,000 for the third.
The company appealed to the Court of Appeal. That court made the following points.
The dangers of legionella were very well known. An HSE Approved Code of Practice was in force and identified the risk from dead legs. Faltec had failed to properly supervise their subcontractors’ work and none of the company’s employees had the necessary training to provide effective oversight.
The assessment of likelihood of a particular level of risk arising should be based on scientific evidence rather than supposition or impression.
The company’s culpability was at the top end of medium.
There was a medium likelihood of death arising. The relevant figure for deaths from exposure to legionella was four in 10,000. In an urban area over a short period of time, it could not be said that that figure involved a low risk of harm.
Faltec was a medium level company with an annual turnover of £50 million.
The judge had been entitled to take into account — as an aggravating factor — the company’s two previous health and safety convictions. In 2006 a worker had been killed and in 2012 an employee suffered serious injuries.
The fine for the first two offences should be £570,000. Applying a one-third discount for the guilty pleas, the fine was £380,000. The total fine for all three offences would be reduced to £1,180,000.
The judge should not have referred to a £1.6 million reserve fund held by the company as a contingency against a fine. Such comments might discourage companies from making prudent provision.
Another relevant example of a case involving Legionnaires’ disease is R v Board of Trustees of the Science Museum (1993). The prosecution in the case alleged that members of the public outside the Science Museum had been exposed to risks to their health from legionella pneumophila, because of inadequate maintenance of the museum’s air conditioning system and that this was a breach of s.3 of the Health and Safety at Work, etc Act 1974 (HSWA). The prosecution argued that it was not necessary to prove that members of the public had actually inhaled the bacterium or that it had actually been there to be inhaled.
The defence argued that the prosecution had to establish a real rather than a potential danger. The crown court judge accepted the prosecution approach. The trustees of the Science Museum were fined £500 plus £35,000 costs. They appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal and made the following points.
The word “risks” in s.3 of HSWA implied the idea of potential danger.
There was nothing in that section which narrowed this meaning.
HSWA should be interpreted to make it effective in its role of the protection of public health and safety.
Section 3 was intended to be an absolute prohibition subject to the defence of reasonable practicability.
Last reviewed 11 November 2019