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A Unitec building services specialist plans to give evidence to the coroner's inquiry - the only independent investigation into the death of fireman Derek Lovell - about flaws in regulations he says set the scene for the fatal coolstore explosion.
"It's an appallingly complex, dense and badly written set of rules," says Gary Cruickshank, head of building services at Unitec New Zealand's Applied Technology Institute. "These rules should be written in such a way that a layman could understand them. Instead ... professionals working in the field can't get to the bottom of them.
"I have coined the phrase that it's death by legislation," says Cruickshank. "The immediate cause was the explosion and the fire ... the root cause is the confusion caused by the very badly put together legislation."
The Department of Labour yesterday laid charges regarding the explosion against several unspecified parties alleging breaches of the Heath and Safety in Employment Act and associated regulations. But calls are mounting for a wide and high-level inquiry which would include scrutiny of the regulatory regime the Labour Department enforces.
A report released this week by a Fire Service investigation team called for a "wider Government investigation" and Act leader Rodney Hide repeated his call for a ministerial inquiry or similar.
The Fire Service report described the regulatory regime for managing large-scale flammable refrigerants as "extremely complex" and "deficient". It concluded that the "fundamental cause [of the explosion and fire] ... may lie in systemic defects in the regulatory environment and the communication between the various regulatory agencies".
Lovell, a senior Hamilton fireman, died and seven colleagues were injured on April 5 in an explosion at the Icepak Group coolstore that the Fire Service inquiry says "was almost certainly caused by a leak of flammable refrigerant".
Icepak had converted most of the coolstore's cooling system to operate on Hychill Minus 50, a refrigerant made up of 95 per cent of highly flammable propane, but the Fire Service, local council and Government agencies were unaware of this.
About 400kg of Hychill Minus 400 was on site without the required safety certification. A location test certificate is required under Hazardous Goods and New Organisms (HSNO) legislation to certify plants with more than 100kg of flammable gas.
Icepak Managing Director Wayne Grattan says the company had thought it had complied, but some regulations were difficult to understand.
The Fire Service investigation was one of several. While it had no powers to compel information to be produced and testimony given, the Labour Department (which enforces Health and Safety and HSNO legislation) and the coroner do. Several private investigations for insurers are also under way.
The Labour Department's report will not be made public before court processes, including the coroner's, is completed.
Cruickshank says Unitec will make its submission to the coroner because it is the only independent inquiry, but ACT leader Rodney Hide, who after the incident called for a Ministerial Inquiry, says the issues are sufficiently serious and wide-ranging to warrant one.
"It's too big a burden for a coronial official," says Hide. "My concern is we have all these overlapping regulations and bodies that are supposed to be administering it and common sense has gone by the by."
It's "not a good idea" for the Labour Department to conduct such an inquiry, says Hide, "because they are part of the inquiry, to be honest".
Cruickshank says confusion arose from a management to administrative system change when the Hazardous Goods and New Organisms Act (HSNO) 1996 took over from the Dangerous Goods Act.
Under the old regime territorial authorities had dangerous goods inspectors tasked with certifying sites with dangerous substances such as a large volume of propane.
"It worked reasonably well ... whereas under the new Act, Erma (the Environmental Risk Management Authority) became an administrator not a manager and the difference is one is paper-based, you tick the boxes and they're happy. With the administration system no one is managing it."
The inspection part of the process has been privatised. Erma licenses inspectors but does not provide training, which is a potential flaw in dealing with HSNO regulations. Under the HSNO regime, the onus is on employers to ensure they take all practical steps to guarantee safety - but Cruickshank says the outcome is often confusion.
According to the Fire Service report, Icepak may have breached regulations requiring signs warning of the presence of dangerous substances, exceeding propane limits without prior approval of the Waikato District Council's hazardous substances officer, and failing to get a location test certificate certifying the site's safety.
Aside from loss of life and injury, millions of dollars were lost in the fire and law suits are likely. Fonterra, which owned the bulk of the product in the coolstores, reportedly lost $25 million, the multimillion Icepak site was destroyed and the Fire Service is looking to recover $2.2 million for the loss of two fire trucks and other equipment, possibly from the Waikato District Council, as the principal rural fire authority covering the Tamahere plant. The council has said it would seek a court ruling if pressed.
Those who lost goods or whose property was damaged may decide to sue, says associate Auckland University law professor Bill Hodge. "We might have more than one defendant because part of what lawyers do is look not only for the primary defendant but to see if there is some regulator who blew it, who didn't catch something that was way out of the building code, the health and safety regs - meaning one government agency or another."
ACC was a bar to litigation for personal injury in New Zealand other than for punitive damages, which the Supreme Court in June ruled could be pursued by Susan Couch, survivor of the 2001 Auckland RSA triple murder. Couch, who was severely injured by William Bell while he was on parole, is suing the Justice Ministry.
Deceased estates can't sue but legal action can be filed for mental harm, which sits outside ACC. "It could be a bystander, a mate of the guy who died or his family," says Hodge. "But the mental harm isn't just grief, sadness, anger, it has to be a diagnostically discernable mental injury." Examples include a man who witnessed his wife drown in a rafting accident and family of Cave Creek victims.
