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R v Malden (Plumbing & Heating) Ltd – Acquittal on Section 3 of the Health & Safety At Work Act

An Old Bailey jury yesterday returned a unanimous not guilty verdict following a prosecution under section 3 of the Health & Safety at Work Act.

The case arose out of a tragic death and serious injury from carbon monoxide poisoning. Chris Newton and Beata Lis of BLM London were instructed to act for Malden who installed flues and boilers to flats in a new build development. The commissioning of some of the boilers was sub-contracted to Paul Williamson of Komit. Elouise Littlewood, a resident of flat 182 Wooldridge Close was found dead on 27.2.08 and her lodger, Simon Kilby was unconscious. Mr Kilby remains in a persistent vegetative state.

When the police / HSE investigators arrived at the scene of the incident and inspected the flue, they found that the flue was disconnected. They took the view that the flue pipes had been cut too short so as to never have been connected but that this was not identified on commissioning because the flues were concealed in a ceiling void.

Malden and Komit were prosecuted by the CPS/HSE following a 2 year joint investigation. In addition to flat 182, the prosecution also alleged material defects with Malden’s flue installation in 13 other flats. The trial commenced on 12 March 2012 and lasted for over 3 months.


Malden were charged with a breach of section 3 of the Health and Safety at Work Act 1974 in that it failed to conduct its undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in its employment, including Elouise Littlewood and Simon Kilby, were not exposed to risks to their health and safety from poorly installed central heating flues. Paul Williamson was charged with gross negligence manslaughter, inflicting GBH and breach of the gas regulations. He was also acquitted of all charges.

The prosecution called evidence from 58 witnesses and 11 experts to try and establish that Malden’s work was shoddy and unsafe. Alleged defects included insufficient flue support brackets, incorrect flue 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.

The Defence

Both defendants pleaded not guilty. Michael Spencer KC and Richard Tyrrell of Crown Office Chambers represented Malden at the Old Bailey. Malden contended that they took all reasonably practicable steps to ensure that flues installed by them were gas tight and that boilers installed by them were not malfunctioning. Any risks to the health and safety of persons not in their employment arising out of the boiler and the flue systems installed by them arose after their installation and as a consequence of interference with the flue system by a third party, and/or due to an inadequate or inherently defective flue system design. In those circumstances Malden denied causing or contributing to any injury or death in flat 182 or exposing any person to any risk to health or safety at any other flat.

On the evidence, Malden submitted that:

  • The air ducts, flues and boilers installed by the Malden were fitted reasonably competently and in accordance with the manufacturer’s instructions. Any defects with the installation did not create a material risk of injury to any person;
  • The reason for the production of excess carbon monoxide from the boiler at flat 182 was never ascertained during the police/HSE investigation but it is likely to have been a fault within the boiler itself;
  • The work was carried out to the main contractor’s build sequence;
  • The main contractor signed off that work as having been installed in accordance with NHBC standards, gas safety standards, building regulations and the main contractor’s requirements;
  • Several flues at Bedfont continued to separate following remedial works by British Gas. An expert called by Malden concluded that the push fit flue system was not fit for purpose in that over successive heating cycles the pipes expanded and contracted in such a way that the flues were prone to disconnect.
  • The police destroyed the flue from 182 without reference to the defence. Malden contended that the destruction was an abuse of process.

The defence successfully challenged much of the prosecution expert evidence as the case progressed with the result that the prosecution shifted its case from the flues being cut too short to allegations of management failings and failure to anticipate third party interference.

Malden’s defence team however managed to persuade the jury to unanimously reject the prosecution case in what is a very rare acquittal in respect of a widely drafted section which is notoriously difficult to defend.

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