Victims of the legionella outbreak in November 2014 may have to take the State to court for compensation as there is no specific legislation that can be used to claim compensation from the companies involved.
The legionella ST1905 strain of bacteria released from the cooling towers of a fertiliser plant in Vila Franca de Xira was found only in five of the 14 people who died, leaving the question of 'what did the others die of?' hanging in the air.
"The potential liability of companies is very complicated, it will be left to people possibly to proceed with an action for damages against the State," said a source close to the case who advised that under current Portuguese legislation, proving negligence will be difficult as the spread of bacteria from industrial cooling towers is not categorised as 'a pollution offences that put the public at risk.'
The infection of 403 people and the 14 subsequent deaths are covered in the final report from the Judicial Police which admits that the spread of the bacteria from the industrial cooling towers, even though it caused death and infection, may not actually be an offence, referring to the incident as a "series of unfortunate omissions coincident in time" that caused the tragedy.
There is an advisory document entitled "Prevention and control of legionella in water systems," written by a committee within the Portuguese Institute for Quality (IPQ). One recommendation in this report is that there should be a ‘manual of best practice’ but this has no legal clout as, according to the Judicial Police, “to date there is no legislative procedure in the field of industrial cooling systems.”
Now the Judicial Police investigation is completed, one way forward is for the Department of Investigation and Penal Action in Lisbon to see if it can prosecute the fertiliser company, and the company employed to inspect the cooling towers, for the crime of "violation of construction rules, damage to facilities and disruption of services," but this may be a long-shot.
The police investigation claims the responsibility for the incident is shared between ADP Fertilizantes and its subsidiary contracted for the supervision and monitoring of its cooling towers.
This inspection company was contracted to analyse samples for legionella on a quarterly basis but had failed to do so but the company had halted production to clean the cooling towers just a month before the fatal outbreak but there had been no "periodic application of bio-dispersant and preventive disinfection at the planned intervals."
The public prosecutor must now decide if there are laws that can be dusted off to prosecute the companies involved but as for the families of those who died from the airborne bacteria, whether legionella ST1905 or some other fatal bug, currently must unravel a legal and legislative tangle before any chance of obtaining compensation.
