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Is Legionnaires’ the new Asbestos?

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.
 
The Health and Safety at Work Act 1974
 
The Act extends to risks from legionella bacteria, but 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 & up to 2 years in jail. 
But there appears to be no sense of panic or urgency.
 
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. 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.
 
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 have been asked to see if they had views on the new ACOP L8 guidance and none was forthcoming, 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 our message is that they need to get on with them and ensure they have the right insurance in place should the worst happen.
 
What to do next? 
 
If you would like to talk to us further about cover for Legionnaire’s Disease or for more information about your own insurance programme, or any other risk or insurance need, please give us a call. 
 
Call 01789 761660

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