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.