Lessons from an Expert Witness

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Nigel Richardson describes some issues that regularly come up in his Expert Witness cases

Nigel Richardson
Nigel Richardson

As an Expert Witness, on site consultant and trainer I am often asked what issues are seen during my work on site that could result in a company losing a legal case for Legionella management.

The examples I give below are some illustrations of the issues I have seen that end users and water treatment companies alike could learn from.

Responsible Person.

I have seen too many sites where the Responsible Person does not exist or is not clear to the staff on site, consequently managing Legionella issues on site is haphazard and incomplete.

It is a legal requirement for a Responsible Person to be appointed by the Duty Holder and that clear lines of communication for all involved in managing Legionella are created. The choice of Responsible Person is important as they should be neither too high nor too low in the organisational structure, too high and they will not afford the time required to the task and too low means they may be hindered by lack of budgetary or process control. Once the correct Responsible Person is appointed, and my recommendation would be that it is done in writing, then this should be communicated to all staff involved in tasks related to Legionella.

Approved code of Practice, L8 4th Edition

Incomplete Written Scheme.

The contents of a Written Scheme are clearly identified in HSG 274 but too often the Written Scheme contains just the action points coming from the Risk Assessment along with the task planner for routine monitoring. A good Written Scheme should include a description of how the systems should operate and include a number of “what if” scenarios, for example, “what if the dosing pump that doses biocides to the system fails”, “what if the calorifier temperature is below 60oC” (incidentally my first question to that scenario would be…..what time was the temperature taken, as it may just be it was taken after the busiest period in the day for hot water consumption and waiting an hour might resolve it naturally). A good Written Scheme will show that some thought has gone into managing Legionella and not paying lip service to it.

Ongoing monitoring results and interpretation.

How and where temperatures are taken, for example, can show that the staff understand their role. I have seen too often temperatures taken from hot water outlets and logged as 41oC with no comprehension that this may well mean that there is a TMV associated with the outlet. If this is the case then the outlet temperature is not the one to take but that it should be the inlet to the TMV that then becomes the correct temperature reading. The Responsible Person’s role is meant to include interpreting results and making decisions based on the outcomes so this means the records need to be read and acted upon not just filed.

Remedial actions.

Based on the results obtained the Responsible Person should arrange to have non-conformances acted upon in an “intelligent” way not a “standard” way. I have seen examples of the same action being taken as a response to any Legionella positive result. For example, always cleaning and descaling an outlet as a response to any Legionella positive from a tap but not varying this response when repeated Legionella positives are obtained from the same outlet. This will not resolve a continued Legionella infection in an area, some thought needs to be given as to where the Legionella may be hiding and what other remedial action could be taken instead.

There are many more examples I could give that have come up in my Expert Witness work and the unfortunate thing is that they need not have occurred and therefore the companies involved could have avoided being in a legal discussion if a little thought had gone in to how the site was being managed.

Some companies do not see the benefit in paying for an independent consultant to be an overseer of their site believing it is an additional expense they do not need to pay but having seen the work and cost associated with managing a legal case it is a very small price to pay to act as “insurance” to keep the company out of the legal system.

If you have any of these in your property you are at risk so contact Collaton Consultancy Limited now for advice of how to manage the risk

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