Cider maker HP Bulmer and its water treatment contractor Nalco were each fined £300,000 after a fatal outbreak of Legionnaire’s disease in 2003. Both companies pleaded guilty to contravening the Health and Safety at Work Act 1974 after failing to maintain an effective disinfection regime for two cooling towers.
The Approved Code of Practice and Guidance L8 recommends packs are removed for cleaning and disinfection, but effective alternatives can be used if this is not “reasonably practical”.
Comments made by Judge Alistair McCreath during sentencing caused some companies to believe that they must remove packs for cleaning if it is technically possible – no matter what the potential disruption.
But, Dr Paul McDermott, specialist inspector at the HSE, said the Health and Safety at Work Act operates along the lines of ‘reasonable practicability’ and not ‘practicability’.
He said: “I have spoken to our legal enforcement team and the statement I have had back is that the judges comments were related to sentencing and are not binding.
“This is not case law and is not setting a precedent. The fact the packs were not taken out when reasonably practical was an aggravating factor taken into account with sentencing, but did not influence
whether either company was found guilty or not.“This [statement] comes from our legal advice unit: ‘Failure to remove the pack is not an offence, failure to do all that is reasonably practical is’.
“So, if it is reasonably practical to remove the pack, then that is what you have to do and if you are not going to do that you have to prove it is not reasonably practical and must prove that what you are doing as an alternative is equally effective.”