PARIA, LMCS FELL SHORT – Enquiry's attorney hits lack of safety standards at fuel company

Commission of Enquiry counsel Ramesh Lawrence Maharaj, SC, said the inevitable conclusion of the evidence presented during the enquiry was that the earliest hours after the incident on February 25 last year, when rescue would have been possible, were squandered by Paria Fuel Trading Company.

Speaking during his three-and-a-half-hour closing statement before the commission on Friday, he said Paria had a non-delegable duty of care to the contractors it had employed.

“Paria’s permit to work (PTW) is part of the contractual terms and obligations and is binding on them. The PTW rules are also consistent with Paria’s obligations at common law, having regard to the inherently dangerous conditions at Paria’s site, a non-delegable duty in common law.

"The expression of 'non-delegable duties of care' is commonly used to refer to duties not merely to take personal care to performing a given function but to ensure that care is taken.

“Such a non-delegable duty arises where the employer employs an independent contractor to execute inherently dangerous work from which, in the natural course of things, injurious consequences must be expected to arise unless measures are adopted to prevent such consequences.

"In such consequences, the employer, Paria, cannot relieve itself of its responsibility by proving it had delegated the performance to a contractor to do the work, however competent the contractor may be. Or even if the employer regards the contractor as a specialist contractor, where the work which the independent contractor is employed to do is inherently dangerous unless done with proper precautions.

"The employer is responsible to anyone who sustains injury in consequence of the manner in which the work is done.”

He noted that Clause 5.1 of the PTW said the applicant shall be responsible for the job and the safety of the people who work on the job and added, “not only people who are employed with Paria.”

Maharaj said this duty of care extended to Paria's ensuring the method statement and other documents submitted by LMCS featured all possible scenarios, and the company should have hired competent experts to review the documents rather than relying solely on the contractor’s expertise.

“It is undisputed that Paria accepted the documents submitted by LMCS. It is no defence to say they didn’t have the knowledge to review them, but indeed their duty of care meant they should have hired an expert to review them.”

Paria did not properly supervise LMCS

He said Paria also failed in its duty of care by not assigning competent people with the relevant qualifications and training to supervise the work being carried out by LMCS. He said while Paria would claim the job of the site authority was delegated to another employee, it could not say it wasn't responsible by delegating it to another incompetent person.

He said it was clear Paria’s obligation to supervise was not fulfilled, as the person assigned to this duty, Houston Marjadsingh, did not arrive on the berth until 2 pm, after the mechanical barrier had been removed. He said if Marjadsingh had been present, he would have been able to assert Paria’s position that the plugs were to remain in place.

Maharaj said there was no dispute over whether the differential pressure scenario was not identified by either LMCS or Paria, and this was a breach of the duty of care by both companies, as neither was aware of the risk and no adequate emergency response plan was developed.

He said the removal of the contents of the pipeline was an underlying factor in the incident, as it created a gaseous void. He said LMCS undertook the line-clearing according to Paria’s work instructions. He said Paria executive director Mushtaq Mohammed said the instructions were an internal document, but they were deliberately sent to LMCS by the site authority.

Maharaj said it should have been obvious to both LMCS and Paria that too much liquid was being removed from the pipeline, as the process took days, and over 1,200 barrels of oil were recorded as being removed.

Looking at the issues which occurred on the day of the incident, he said the toolbox meeting did not specify whether or not the plugs were to be removed, and Paria’s representative was not present to give the company’s view.

Maharaj said, based on the reports from In-Corr-Tech president Zaid Khan, the best time for rescue was when Chris Boodram emerged from the pipeline. He said Paria’s operations manager Colin Piper agreed conditions in the pipeline were static.

Maharaj said Paria prohibited diving into the pipeline to attempt rescue, and held no consultation with LMCS to review any plans they had for rescue. He said they also did not have competent diving personnel to review any plans. He said there were three emergency response plans which were presented by LMCS.

Maharaj noted that various people on Paria’s incident response team had differing timelines on the time in which the men could be rescued rather than recovered, but all agreed there were diminishing returns, in that the longer the delay, the less likely the chance of rescue.

Maharaj: Rescue effort lacked urgency

“The incident management team failed to take urgent action to rescue the men. Paria didn’t take urgent steps to talk to Boodram, who testified he would have given Paria everything he could tell them if he had been debriefed immediately.

"IMT had a duty to explore all possible ways to rescue the men.”

Commission chairman Jerome Lynch, KC, asked whether rescue was a legal or moral duty.
He said he understood Paria had a moral authority, but was concerned whether the duty of care extended to rescuing them. He said if the incident occurred owing to the failure of both companies of not identifying the Delta P hazard, then Paria had a duty of care to attempt to rescue the men, but if not, he did not see how the company should be responsible for rescue.

Maharaj said since Paria was the site authority and the men were sucked into the pipeline on Paria’s land and were at risk of dying, with people offering to risk their lives to save them, “It seems to me the law would be impotent if they didn’t have a duty of care.

"Paria took a position, they didn't talk to LMCS, they didn't consult an expert. This is a case where Paria had charge of the compound and exercised the right to prevent people from trying to save lives.

"They knew they had all the equipment needed, and divers available. They became distracted by wanting to take video to prove what the status was and ignored Boodram.
"They had a responsibility to confer with LMCS and didn’t do so.

"Also LMCS had a responsibly to implement a rescue plan but was prevented from doing so by Paria.”

Lynch promised a report by April, and said he would use any influence he had to ensure it was made available to the public.
He thanked those who had participated in the commission, including the lawyers and staff. He thanked members of the public for making him feel valued and welcome.