An article in the Post magazine today has asked the question.
Is Legionnaires’ disease the new Asbestos?
Rachel Gordon writes
“An update to health and safety legislation means insurers need to pay renewed attention to the rarely considered threat of legionnaires’ disease. But while some are already labelling the condition the ‘new asbestos’ in terms of claims, others insist there’s nothing to worry about – so who’s right?
Legionnaires’ disease, in which patients become infected with bacteria through inhalation of contaminated water droplets, is experiencing something of a renewed focus in terms of legislation.
All landlords and managing agents are now expected to comply with revised Health Survey for England guidance on controlling exposure to legionella bacteria.
Water‑testing companies, in particular, have been quick to warn about potential fines – and even jail terms – for offenders.”
She goes on to say that…
“The Health and Safety at Work Act 1974 extends to risks from legionella bacteria, but the new change comes in the form of secondary legislation from the HSE’s updated Approved Code of Practice, Legionnaires’ Disease and the Control of Legionella Bacteria in Water Systems (ACOP L8).
Previously, risk assessments were only required for water systems of more than 300 litres in capacity, which would typically be in commercial or industrial buildings.
However, as of last November, ACOP L8 states that risk assessments – and preventative action, if necessary – must now be undertaken by all providers of residential accommodation.
Clearly, this ranges from very large properties, such as those controlled by local authorities and housing associations, to those owned by private landlords, hoteliers, B&B owners and campsite owners.
This is why water‑testing consultants have jumped on the fact that landlords and managing agents have additional responsibilities – and are hammering home the point that offenders could face a £20 000 fine and up to two years in jail.
But there appears to be no sense of panic or urgency – and while some brokers, including Oval and Marsh, have provided guidance about the new rules, insurers have had little to say.
So what is the reason for the apparent apathy?
First, for landlords, there is no doubt that being responsible for a legionnaires’ outbreak could be very serious. But legionnaires’ disease compliance is not seen as a priority and no one is expecting the HSE or environmental health officers to be checking every landlord has done their duty, as they do not have the manpower.
It would also seem insurers are well aware of the risk and have worded their policies to minimise claims. Paul Turnbull, account director in Willis’s real estate practice, explains: “Many public liability policies do not include cover for legionella claims. Claims may fail because the policy contains a condition invalidating cover if the policyholder has failed to adhere to the approved code of practice.
“In addition to limiting their exposure to claims through policy conditions and exclusions, many insurers seek to control their exposure by seeking additional underwriting information concerning the actions taken by policyholders to manage the legionella risk.”
In other words, cover will only be provided to those who are managing the risk or in cases where an outbreak would be extremely unlikely.
Joseph Noel, personal injury technical director with Cunningham Lindsey comments that
“The average number of reported cases works out at around 350 a year so, clearly, the incidence is low. That said, I would certainly recommend landlords and managing agents familiarise themselves with ACOP L8.
“There is the issue of ensuring they have the right insurance in place, but also being aware that insurance won’t cover fines – although it may cover fees for intervention from the authorities when charges are levied.”
He continues: “Most landlords are not going to experience cases of legionella, but they must be aware of their duties around performing checks, draining down systems if necessary and being particularly careful if there is a stagnant water build‑up, such as with a vacant property.”
Jim Byard, who heads law firm Weightmans’ disease practice area, agrees legionnaires’ is some way off becoming the ‘new asbestos’. He comments: “Although landlords won’t particularly want additional work, this is broadly positive in that the new guidance should improve risk management. But while there are a few claims, legionnaires’ disease is nowhere near as prevalent as asbestos‑related conditions such as mesothelioma.”
Meanwhile, experts emphasise there must be a sense of proportion.
Fiona Gill, partner with DAC Beachcroft, says there is no comparison between asbestos and legionella claims. “Legionnaires’ disease has a short incubation period – typically less than two weeks – whereas asbestos conditions are long‑tail. Asbestos claims are a much bigger issue for insurers, but in terms of this new guidance, insurers will [still] welcome it, as it brings greater clarity.”
Michelle Penn, partner at law firm BLM, has worked on a handful of legionella cases, including one involving a hot tub at a holiday cottage. He says: “I would not underplay the severity of this disease, but such cases are extremely unusual, if not unknown. No one wants more regulation, but the revised guidance should be a useful reminder – for example, if a landlord is letting out a cottage with a hot tub then it must be maintained properly.”
She emphasises that landlords may well benefit from an experienced broker: “A good broker will be aware of the legionella risk and the fact that it may not be part of a policy. There are lots of exclusions and variations, and landlords should take advice to ensure they have the correct cover.”
Rachel Gordon concludes that ….
Legionnaires’ disease, because of the low number of cases, appears to be a far lesser concern – although, of course, it is extremely unpleasant for those who do contract it.
A number of insurers were contacted to see if they had views on the new ACOP L8 guidance and none was forthcoming. “The insurers we approached did not express any views on the new legislation,” says Turnbull – suggesting there is no heightened alarm about claims.
Meanwhile, risk assessments for legionnaires’ disease may result in extra cost and hassle for landlords and managing agents – but the message is they need to get on with them and ensure they have the right insurance in place should the worst happen.”
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