Just two weeks short of the fourth anniversary of the tragic Icepak Coolstores explosion Hamilton Coroner Peter Ryan has released his findings on the death at Tamahere of senior firefighter Derek Lovell.
Derek Lovell, 49, died of traumatic injuries from an explosion on April 5, 2008 at the Devine Rd coolstore facility when he and seven other firefighters responded to a fire alarm triggered by a major leak of highly flammable LPG refrigerant.
Following an inquest held over three-days in September 2011 the Coroner made a number of recommendations designed to prevent further deaths occurring in similar circumstances.
His key recommendations included that the refrigeration industry develop best practice guidelines for the safe use of hazardous substances when used as refrigerants, that it develop and implement a registration system for personnel working in areas where there was serious risk to life or property, and that it or education providers to the industry incorporate relevant standards on the safe use of flammable refrigerants into its training syllabus.
The coroner also recommended that the refrigeration industry widely publicise the lessons learned from the Tamahere incident.
He urged the Labour Department to consider licensing gas suppliers and refrigeration engineers involved in installing or handling hydrocarbon-based refrigerants, and to implement a licensing and inspectorate regime for installations using hazardous substances posing a significant threat to life or property.
Click the following link to read the Coroner’s finding in full (pdf) Derek Lovell Finding
Derek Lovell’s mother, Barbara Thorburn, said the company that installed the plant and its owners should be facing criminal charges, reported the NZ Herald.
Barbara Thorburn said police should have charged Mobile Refrigeration Specialists and Waikato Coldstorage – formerly Icepak Coolstores – with criminal negligence after a blaze in 2008 in Tamahere killed her son Derek Lovell and injured seven of his colleagues.
The 86-year-old, who made the comments as coroner Peter Ryan released his findings from an inquest held last year, said she had considered a civil action against both companies.
Tamahere resident Philippa Stevenson appeared before the Coroner in September representing Barbara Thorburn and the Tamahere community.
She applauded the Coroner’s “gutsy” stand in challenging the Labour Department’s entrenched position of expecting present regulation alone to ensure compliance with safety standards.
“The Labour Department argues that the current regulatory requirements and penalties are sufficient to motivate people to do the right thing,” Stevenson said. “But it goes against everything we know about human nature. People can be ignorant of their responsibilities or just plain try to get away with things if they think no one is looking. What is needed, as the Coroner put it, is a fence at the top of the cliff (of licensing and inspection) rather than an ambulance at the bottom (of penalties).”
Stevenson said she welcomed the Coroner’s support of refrigeration industry pleas for mandatory licensing and inspection regimes along with education programmes.
“It’s clearly sorely needed when the industry itself is begging for it.”
She also welcomed the Coroner’s backing for publicizing the events at Icepak Tamahere.
“Even during the inquest – nearly four years after the explosion – I took calls from people in the refrigeration industry who had theories about what had happened at Icepak. They had no idea that the very comprehensive Labour Department investigation and report had determined what had happened in such detail.
“Despite the successful prosecution of Icepak and its refrigeration engineer Mobile Refrigeration Services, and the inquest, most of the information about what happened is still unknown by industry members. It needs to be very much in the public eye and especially of those in the refrigeration industry.
“The shock waves from the Icepak explosion went well beyond the Tamahere site in April 2008. There is such interest in what happened at Icepak that it will be a great drawcard for refrigeration industry people to attend education seminars about the proper use and handling of LPG refrigerants.”
The Institute of Refrigeration, Heating and Cooling Engineers (IRHACE) said it was pleased the Coroner’s findings agreed with its submission to the inquest. It had made progress on several fronts since the fire, including a code of practice, improved training, and gaining an agreement with most refrigerant suppliers to limit the supply of refrigerant to suitably qualified people.
But it warned that only so much could be achieved on a voluntary basis.
“The coroner has made a specific recommendation that registration of the refrigeration industry be carried out by IRHACE and we are willing to do so,” said spokesman Robert Mannes. “However, by itself such a scheme would only be voluntary. So for it to be effective the other recommendations regarding implementing and enforcing a licensing and inspectorate regime would also have to be carried out.
“Industry would be very willing to work with the Government to ensure that suitable legislation was put in place. Without this a voluntary registration and training scheme would not be successful. A topical comparison would be to ask how many car drivers would be fully competent if there wasn’t a licensing and enforcement regime for that activity in place.”
Mannes said the use of hydrocarbon and other natural refrigerants would become more common with the phase out of CFC and HCFC refrigerants under the requirements of the Ozone layer Protection Act.
In a response to the Coroner’s findings the Labour Department indicated it was unwilling to depart from its position of relying on existing regulation, or to implement his recommendations.
“The department told Coroner Ryan that it believed the Health and Safety in Employment (HSE) and Hazardous Substances and New Organisms (HSNO) Acts provided sufficient legislative and regulatory coverage of the industry.
“We particularly noted to Coroner Ryan that the ‘all practicable steps’ element of the HSE Act as well as relevant regulations and standards provided sufficient regulatory strength,” said Central Division General Manager Ona de Rooy.
“We told the Coroner that we believed it was more about the industry and operators adhering to the laws and regulations already in place than adding further process to the industry.
“It should also be noted that three parties have been convicted under HSE Act provisions for their roles in this tragedy,” de Rooy said.
Stevenson disagreed that the provisions of existing legislation provided sufficient deterrence for or denunciation of companies who caused deaths.
The Coroner described as “radical” a suggestion by Stevenson that New Zealand needed a corporate manslaughter offence.
“It can hardly be a radical idea because both Britain and Australia have such an offence. They are both countries whose legal systems NZ often emulates. The UK has the Corporate Manslaughter and Corporate Homicide Act 2007 and Australia has an industrial manslaughter offence in the Australian Commonwealth Criminal Code Act 1995, which came into force in 2001.
“I’d say it’s about time NZ began to look at including this offence in its legal code. The Health and Safety in Employment Act is not sufficient to deter and denounce the actions or inactions of people in corporations who kill people, particularly members of emergency services and the public.
“In the Icepak case, Icepak and director Wayne Grattan had heavier fines for charges related to employees who were not harmed than they were for the firemen who were killed or injured. Icepak Coolstores and Grattan each received fines of $30,000 each on charges that related to Icepak employees. No employees were harmed. Those charges had a maximum penalty of $250,000.
“Icepak Coolstores was convicted of two charges in relation to the death of Mr Lovell and the injuries to the other seven firemen. Each charge carried a maximum penalty of $10,000. Icepak was fined $3600 on each charge or a total of $7200 for the death of Mr Lovell and severe, life-changing injuries and impacts for the other seven firefighters. That is just not enough of a penalty.”
Barbara Thorburn told the NZ Herald she still struggled with her son’s death.
“He was a very lovely man, the best son in the world, and it still for me today is quite unbelievable.
“If I had been in stronger health and also wealthier, I would have taken a civil case against them – I made up my mind I would have.”