On 15 December 2009, a New Zealand Court penalised two companies and a director with fines totalling over $NZ390,000 over an explosion in a coolstore that result in the death of one firefighter and injuries to others. In the comments section of a previous blog article the following questions were put to the New Zealand Department of Labour (DoL). Their responses are included below
- How frequently had DoL inspectors visited the IcePak site?
The Department of Labour had visited the site once previously. This visit was in response to a complaint about the stacking of stillages outside the cool-rooms. This issue was dealt with during the visit.
- When was the last visit prior to the explosion?
In 2004 for the above complaint.
- Has this catastrophic failure of self-regulation caused DoL to review the effectiveness of the OHS regulatory approach?
The Department’s investigation raised some broader issues outside the failures of duty holder to meet their legal requirements. These are being considered. The Department does not accept the premise that the cool store was operating under “self-regulation” given the regulatory framework in New Zealand.
- Some of the (successful) charges were under s.18A (selling or supply plant for use in a place of work). As this is rare, what action will DoL be undertaking to emphasise these obligations to suppliers of equipment in New Zealand?
There were no charges taken under Section 18A of the Health and Safety in Employment Act 1992. A charge was laid under the Regulation 18 of the Health and Safety in Employment (Pressure Equipment, Cranes and Passenger Ropeways) Regulations 1999. This regulation relates to duties of designers and design verification of pressure equipment.
- As the Icepak case was so high-profile will additional documentation such as the return of prosecution and sentencing notes be made publicly available?
As the coronial inquiry into the death of the fireman has yet to be held we are unable to release our investigation report.
Mobile Refrigeration Specialists
According to the Statement of Facts filed in the Court, Mobile Refrigeration Specialists Limited one of the defendants who was engaged by Icepak Coolstores Ltd (IPC) and Icepak Group Ltd (IPG),
“did not have a systematic approach to identifying and controlling hazards it encountered in its work. It neither possessed nor consulted any relevant Codes of Practice of Standards.” [It relied on the advice of one employee who had limited experience in this area]
“…it failed to make the necessary changes or properly advise IPC and IPG of the changes that needed to be made to its refrigeration systems.”
“[it] had no procedures to guide employees, and no reference material to which its employees could refer when embarking on a project of this proportion.”
It relied on a refrigerant leak seeker which was not designed to detect propane yet the refrigerant used since 2004, Hychill Minus 50, is 5% ethane and 95% propane. [ The refrigerant manufacturer made some comment on the product in relation to this event in 2008.]
The charges against IPC concern the failure to protect employees but also allegedly endangered employees of the NZ Fire Service Commission:
“On or about 5 April 2008 at Hamilton being a person who controls a place of work and knows of a significant hazard in the place of work and expressly authorised NZ Fire Service Commission employees to be in the place of work failed to take all practicable steps to warn them of the significant hazard.”
The director of IPC, Wayne Desmond Grattan is also being charged over the incident. The Statement of Facts from the DoL in his case list the practicable steps that were not taken. The company failed to
“a) Properly inform employees of the hazards associated with the refrigerant and what to do to reduce the risk of harm from the hydrocarbon based refrigerant.
b) Provided suitable safety warning signs to remind people of the hazard from the refrigerant and its presence in particular places.
c) Have independently verified the safe design of the refrigeration system and the safe use of hydrocarbon based refrigerants at Tamahere.”
It is clear that OHS prosecutions in relation to this explosion should have far-reaching effects throughout the coolstore industry in New Zealand, the fire safety services, given that one firefighter died and seven others injured, the OHS regulator which should always review their own procedures, actions and communications strategies after each major incident and the New Zealand business community generally.
The incident was large, spectacular and damaging but behind all the legal argy-bargy it must be remembered that people were killed and injured. Again according to the DoL Statement of Facts:
- One firefighter was killed.
- One firefighter was off work for four weeks
- One firefighter received broken ribs, post-traumatic stress syndrome, as well as other injuries and was off work for almost ten months
- Another firefighter received burns to 14% of his body and is receiving “ongoing physiotherapy, hand therapy and outpatient plastics.”
- Another required “600 internal stitches to reattach the left side of his face” and amongst other injuries, including a brain injury, may never return to work.
- One has “severe long term hearing loss” and nerve damage to his hands.
- One received burns to 71% of his body, was in an induced coma for 10 weeks, has reduced vision in his left eye and was in hospital for six months.
- The last injured firefighter spent six weeks in hospital with sever burns to his head and hands and has had to have part of his little finger amputated.
Thanks are extended to the DoL for the co-operation in the preparation of this article.