A jury has returned a unanimous not-guilty verdict in a three-month trial concerning a fatality and serious injury from carbon-monoxide poisoning.
The Old Bailey heard that Malden (Plumbing & Heating) Ltd was responsible for installing flues and boilers in new-build flats in 2006 and 2007. The commissioning of some of the boilers was sub-contracted to Paul Williamson of Komit.
Elouise Littlewood, a resident at one of the flats, was found dead on 27 February 2008. Her lodger, Simon Kilby, was unconscious and remains in a permanently low responsive state.
On investigation, the Police and HSE found that the flue was disconnected. They came to the conclusion that the flue pipes had been cut too short and had never been connected. They also contended that this was not identified on commissioning because the flues were concealed in a ceiling void.
A joint prosecution by the Crown Prosecution Service and HSE saw Malden charged with a breach of s3 of the HSWA 1974. Paul Williamson was charged with gross-negligence manslaughter, inflicting grievous bodily harm (GBH) and a breach of reg.26 (9) of the Gas Safety (Installation and Use) Regulations 1998 in relation to a failure to examine the effectiveness of the flue. Both parties pleaded not guilty, and were acquitted of all charges on 28 June.
During the trial, the prosecution called evidence from 58 witnesses and 11 experts in an attempt to establish that Malden’s work was unsafe. Alleged defects included insufficient flue-support brackets, incorrect pipework and component parts, failure to follow the manufacturer’s instructions, incompetent installers, no risk assessment for the installation of flues, and management failings in the organisation, supervision and planning of the work.
Representing Malden, Michael Spencer QC and Richard Tyrrell of Crown Office Chambers stated that the company took all reasonably practicable steps to ensure that the flues it installed were gas-tight and that the boilers it fitted were not malfunctioning.
They argued that any risks to the health and safety of persons not in the firm’s employment, relating to the boiler and flue systems it had installed, arose after installation and as a result of interference with the flue system by a third party, and/or due to an inadequate flue-system design.
Christopher Newton, a partner at Berrymans Lace Mawer, which represented Malden, said there was good evidence that plasterers had interfered with the flues during the rendering process. Malden was aware of this problem and sent a letter to the main contractor warning it to address the issue.
Among several points of evidence, Malden submitted that the reason for the production of excessive carbon monoxide from the boiler in question was never ascertained during the investigation, but is likely to have been a fault within the boiler itself. Following the incident, remedial works on flues at the development were undertaken, yet several flues continued to separate. An expert for the defence concluded that the flue system was designed in such a way as to make the flues prone to disconnection.
It also emerged that the Police destroyed the flue from the flat without reference to the defence – an action which, Malden argued, was an abuse of process.
Mr Newton explained that the successful challenge to the prosecution was down in no small part to his team’s own “forensic investigation” in securing evidence and witness statements.
Following the incident, the Building Regulations were changed to require, from January next year, inspection hatches when flues are concealed. Hayley Betteridge, associate partner at Plexus Law, which acted for Mr Williamson, explained: “Paul Williamson always maintained he had commissioned the flue in line with accepted industry practice. This incident has led to a review of the Building Regulations and British Standards.
“The HSE has issued further technical bulletins containing guidance for gas engineers, designers and contractors when dealing with the issue of flues in voids.”
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Surely under CDM the design risk assessment was flawed?
Regardless of interfearence from other trades or malfunction. CDM
If equipment is designed to be fail safe unless uninterfeared with, should this not be ensured against by adequate control upon installation?
Any new build installaion may be subject to abuse missuse by others etc. CDM
If other trades were permitted to damage such equipment post fixing is the PC not responsible for failing to manage this? CDM
If thier is a risk? of missuse or impact damge on a system that requires it to be in good order, surely protection and or periodic inspection to assertain its effectiveness is justified.
I have a duty to monitor TW, that may be impacted upon by other trades, miss use etc.
And TW is not part of the permanent structure.
If there is an inherent risk? it is the duty of all participants to mitigate such risk by suitable control?
I have seen brickies block flues to prevent muck ingress ?
If as you say, they claim to have sent a letter, given the seriousness of the implications therein, why would you not copy the letter for your own records, (alarms bells should have gone off given the gravity of the issue of concern) and why would you then not follow up your concerns?
This whole case seems seriously flawed, given the detail herein and your comments, it would appear that justice was not best served in this case?
We are to hand over any structure in a fit for use condition?
Thereby safe from risk, as is required under CDM.
They failed to do this?
How did test and commisioning miss these flaws? is the test flawed, is there a lack of competence in testing? All CDM requirements?
I mearly raise the question?
Bob,
Are you seriously suggesting that any installation should be made immune to interference BY ANY MEANS, with the Principle Contractor retaining responsibility for any interference that happens AT ANY TIME IN THE FUTURE?
Not only is that totally unreasonable but it is not risk assessment based. You are confusing absolute duty with reasonably practicable.
Interference with the flues? Risk Assessments? etc etc. These flues were coming apart on there own even after correct installation. If this is correct, the flue manufacturers should have been in the dock instead of any of the contractors, because if everyone had behaved impeccably in all respects some one was going to get hurt. Are there still people at risk from this now?
The facts of this case are that the company stated that they saw interferance and wrote a letter, they could not produce the letter and the builder had no record of having received the letter, the only witnesses to this were their employee’s, they could also not tell you who installed the systems as they stated they did not keep records despite the site manager stating he kept records and gave them to the managing director of the company.