Government loses soil fumigation case

11.45am

A judge has thrown out a case brought against an orchard company after a soil fumigation exercise went wrong, exposing residents of a town near Hastings to a dangerous gas.

Crasborn Developments, a Hastings-based company that specialises in redeveloping orchards, had faced 42 charges relating to the incident on October 1, 2001.

The company had hired contractor Fume-It Ltd to apply the fumigant chloropicrin to orchard land, but during the night the gas escaped from the soil and drifted into nearby homes.

About 60 residents of Kohupatiki, about 8km northeast of Hastings, were evacuated and 25 needed medical treatment.

Fume-It was fined after being prosecuted by Occupational Safety and Health (OSH) and Hawke's Bay Regional Council.

Later OSH also brought charges against Crasborn, saying the company should have known about the danger posed by chloropicrin, and failed to take steps to protect an employee and residents in the area.

But in a reserved decision released this week, Napier District Court Judge Tony Adeane threw out the case, saying Crasborn was "entirely without fault". The case was heard in March.

OSH had said the contractor hired by Crasborn was not registered to use chloropicrin, but Judge Adeane pointed out there was no compulsory registration or code of practice for applying the chemical.

Crasborn was entitled to rely on Fume-It to do the job properly, he said.

It would not have been practical to warn neighbours at the time the gas escaped. If they had been warned earlier that fumigation was planned, they would have known the cause of their symptoms, but the outcome would have been the same.

The "strange combination of circumstances" that led to the gas escape was primarily the responsibility of Fume-It, Judge Adeane said.

Crasborn's lawyer, Bruce Gilmour, said the incident had caused the company considerable stress, and it was delighted the Court had found it was not to blame.

More importantly, the company was grateful no long-term injury had been caused, and that those exposed to the gas had recovered.

Mr Gilmour said the case could have created great difficulties for the apple industry.

"(Fumigating the soil) is something that just has to be done before replacing existing trees ... If Crasborn had been found guilty, it would make it all but impossible for orchardists to successfully replace old trees or plant new varieties," he said.

- HAWKE'S BAY TODAY