Lynch report calls for manslaughter charges against Paria

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Lynch report calls for manslaughter charges against Paria

Based on the findings of the Lynch report into the Paria diving tragedy, which followed an extensive Commission of Enquiry, state-owned Paria Fuel Trading Company should be investigated by police for the offence of manslaughter.

The report recommended the offence, citing a case for criminal negligence in how Paria responded when four divers were sucked into the company’s undersea pipeline, where they died.

The recommendation is contained in the 380-page report produced by Kings Counsel Jerome Lynch, who chaired the Commission of Enquiry (CoE) into the Paria pipeline tragedy of February 26, 2022.

The Report stated: “We recommend to the Director of Public Prosecutions that on the evidence before this tribunal we find that there are sufficient grounds to conclude that Paria’s negligence could be characterized as gross negligence and consequently criminal. We do not conclude that the same is true of LMCS, as we are of the view they were effectively prevented from pursuing a rescue by Paria”.

The Commissioners recommended that “the DPP consider charging Paria with what is commonly known as Corporate Manslaughter”.

The Report was laid in Parliament on Friday afternoon by Minister Stuart Young, almost two months after it was handed to the President, and following sustained appeals by the families of the dead, the lone survivor, and traumatized citizens.

Young said that Cabinet had made the decision to forward the Report to the Office of the Director of Public Prosecutions.

Here are some of the recommendations contained in the report:

1. Recommendation 1

It is essential to demonstrate that all the necessary permits, licences and approvals are in place and a person assigned to undertake that task (such as the Diving Client Representative). Here there was no Certificate of Environmental Clearance CEC which are crucial to regulatory compliance.

2. Recommendation 2

The company must make clear that they require any contractor to adhere to an internationally recognised commercial diving standard or at least the 1997 TTBS standard that remains applicable although not compulsory in TT. This ought to be a contractual requirement not to be derogated from. STOW does not meet this requirement.

3. Recommendation 3

Structured specified oversight by the company incorporating a robust procedure is an imperative to ensure that these types of operations are executed meticulously, safeguarding the well-being of all personnel and plant. This is in addition to the full- time supervision of the works by the contractor.

4. Recommendation 4

The company must employ either in-house or contracted a qualified and competent Diving Client Representative responsible for reviewing approving. and ensuring the adherence to procedures throughout all stages of a Diving Operation

5. Recommendation 5

Contractors must engage a demonstrably qualified and competent Dive Supervisor relevant to the specific job being undertaken.

6. Recommendation 6

A Daily Task Plan which sets out the specific jobs for the day or a shift ought to be considered by all companies to be undertaken instead of the current entry tasks on the Work Permit which would then simply refer to the DTP. It should not be deviated from without written consent is a more effective way of meeting the burden created by hazardous work carried out in a hazardous environment.

7. Recommendation 7

AP must be an ever-present hazard that needs to be identified as a standard item to be considered and dealt with in every case where subsea pipework is being worked upon and especially where a pressured environment is part of the methodology for the carrying out of the works.

8. Recommendation 8

The Applicant under the PTW system utilised by Paria (or any other Company using a similar system) must be able to properly supervise the job. This means it either has to be an in-house expert (Client Representative) or an independent expert or the Contractor themselves but, if it is the contractor then this needs to be spelt out specifically, as they are unable to carry out all the functions under the PTW system.

9. Recommendation 9

If the PTW system is to be retained or emulated elsewhere in other Companies the extent to which monitoring by the Applicant is to be undertaken must be completely clear. If it is to be “continuous” then it must specify what that is to entail by identifying the periods over which monitoring by the Site Authority or Applicant, or equivalent will be carried out. Consideration needs to be given to that course of action by the parties when identifying the work for the day.

10. Recommendation 10

Specifically, for Paria they need to have an introspective look at their operations and make changes to the PTW system to effectively reshape the roles, obligations, processes, and behaviours, so they reflect the auditable aims of the PTW system’s safety practices. Precision and simplicity of language is key to the understanding of all those engaged in the use of the system.

f. Ensuring that only pre-approved and competent commercial diving companies are engaged, by creating an Approved Vendor List (AVL) or equivalent mechanism be established. This AVL should consist of companies whose Diving Health, Safety, Security, and Environment (HSSE) capabilities have been rigorously assessed and validated by a Commercial Diving Subject Matter Expert.

g. Greater space needs to be available or a separate document created to ensure there is sufficient space to write all that needs to be written in the “Specific Tasks” part of section A on the Work Permit.

h. Section B 1 of the Work Permit under the heading Requirements for Equipment Isolation and Clearance needs to have a separate line for Delta P with a consequent checklist created to address Delta P situations.

i. The Isolation Checklist and Certificate system must be implemented.

j. The Applicant must be either an independent person contracted in for the purpose or employed by Paria in the role as a competent Diving Client Representative.

k. Ensuring that the Contractor Official signing the Work Permit on behalf of the Contractors is on site.

11. Recommendation 11

All Companies who seek to rely on Contractors to provide commercial diving operations must ensure they have a well-established Diving Safety Management System (DSMS)82 which follows a known industry standard beyond requiring a STOW certification.

12. Recommendation 12

The MS or Task Plan procedure should incorporate where applicable, a mandatory verification “hold” or “witness point where the work cannot proceed without designated company authorisation. These are called hold or witness points and allow an additional safety feature that permits everyone to know what has been done and what happens next.

13. Recommendation 13

The precision of language is essential and if an ullage is being sought it must be writ large all over the documentation so that those carrying out the work can be in no doubt what is being asked of them

14. Recommendation 14

A proper estimate of identifying how material is to be removed from the line must be given and an accurate method by which that can be measured especially as all one is looking for is a modest ullage. A slop barge is more than adequate for those purposes.

15. Recommendation 15

Any change in methodology must be accompanied by a new risk profile so as to accurately reflect the possible additional hazards. This is often referred to as a Management of Change85 Process

16. Recommendation 16

An expert Dive Client Representative is essential to act as an independent assessor of the works being undertaken, the risk profiles they throw up and in ensuring a monitoring regime that that all parties understand

17. Recommendation 17

Companies are to be expected to provide timely and comprehensive responses to Occupational Health and Safety Officers. The creation of a separate offence within the OSHA regime for failing to comply adequately or at all, with a legitimate request for information by an investigating officer of the OSH Agency.

18. Recommendation 18

Any Method Statement must be agreed in writing by the Company. It would be helpful and wise to have a box next to each step which can be initialled by the Company as having been considered and approved. It is also here where the “Hold and Witness” lines can be drawn so that the works are halted until the Company approves moving to the next step. This can be captured in what is referred to as a bridging document. 86 No diving operation should commence without the bridging document.

19. Recommendation 19

Consideration should be given to a documented “Go-no-Go” Process. But as a minimum all meetings relevant to the works to be completed should at least be noted on a standard form designed for the purpose and signed by the parties as being an accurate record of what was discussed.

20. Recommendation 20

All safety documentation (such as the JSA/JHA) which provides for a checklist of potential hazards in a commercial diving environment must have as one of the criteria to be considered AP. Next to that issue, must be a column which demonstrates the manner by which the hazard will be eliminated completely or reduced to a bare minimum. Any emergency procedure must include a plan for how to deal with the hazard.

21.Recommendation 21

Ensure that the separate roles of dive supervisor, dive attendant, standby diver and operations manager are held by separate individuals who understand the limit of their responsibilities.

22. Recommendation 22

The new TT draft dive standard to be made compulsory immediately. With a 12 month review to be conducted so as to bring same up to date with the most modern approach to Health and Safety.

23. Recommendation 23

If it is thought truly necessary to have a commercial scuba diving requirement, which we are unconvinced that it is, that must be incorporated in the compulsory dive standards, setting out the very limited circumstances in which that is proper and the conditions to be applied. This should be part of the review process referred to above.

24. Recommendation 24

The Competent Person must be capable of examining, and actually examine, the MS (step-by-step guide to the works) to identify any deficiencies therein and the potential adverse consequences of those works being carried out in that manner.

25. Recommendation 25

The MS “step-by-step” plan for the works must be signed by both Contractor and Company as the approved common working document. Similarly, any amendment must also be signed by both parties as the new common working document.

26. Recommendation 26

The PTW is stated explicitly to be part of the contract between the parties only to be derogated from in writing by the parties so that everyone knows who is in which roll.

27 Recommendation 27

Where works are being conducted in more than one location at a time there should be a Simultaneous Plan.

28. Recommendation 28

No one should sign the TBM document if not present at the time of delivery of it.

29. Recommendation 29

No work to be commenced by the contractor until the TBM document is completed.

30. Recommendation 30

Method Statement attached to the Work Permit is to be read and understood by all parties but especially, the Contractor Official, the Competent Person, the Site Authority and the Applicant, alongside the Task Plan.

31. Recommendation 31

Definition given to what “periodic checking” is meant to entail for each particular job. Similarly “monitoring” needs to be made plain as to its meaning and to what extent it is to be continuous or otherwise.

32. Recommendation 32

There must be an Isolation Procedure adopted by any company where pipework and other potential energy hazards need to be isolated before work can begin. This must include a Certificate of Compliance annexed to the PTW.

33. Recommendation 33

It is essential that a hyperbaric dive chamber for divers underwater for long periods be made available as close to the site as possible. The diving contractor bears the responsibility to ensure the provision of adequate decompression facilities to enable the recompression of a diver in the event of an emergency, should such a situation arise. A “hyperbaric Doctor must be in place to deal with every foreseeable scenario

34. Recommendation 34

Drilling. Drilling and Drilling. For any ICS to succeed it is dependent on regular drilling of the ICT. This is something that should happen at least once a year.

35. Recommendation 35

An ICS requires a well oiled Unified Command within it, that must be clearly defined, include all outside agencies that are likely to be necessary in an emergency, but must include a contractor representative in the IMT. They must be drilled at least annually.

36. Recommendation 36

That compulsory regulation be introduced with a regime of financial penalties and criminal sanctions for companies and individuals failing to adhere to them.

37. Recommendation 37

Companies that operate in dangerous environments must have a protocol for dealing with the families of victims of industrial accidents and incidents. Once an ICS is established there needs to be a proper procedure to keep the immediate families of those who are directly affected properly informed.

38. Recommendation 38

Additionally, where there is the prospect of delay and or a rescue attempt to be made, providing sanctuary away from the public and the media to the immediate relatives, on site, seems to us not to require any protocol, just common humanity.

39. Recommendation 39

Lastly, in situations where families have had their loved ones and breadwinners snatched away from them in circumstances such as these, or any tragedy real consideration needs to be given to assisting the families in the immediate aftermath of the incident to help them with the financial burden that they have been catapulted into. This does not have to involve any admission of liability merely the recognition that the families of those who have died, or been seriously injured, may need help.

40. Recommendation 40

We recommend to the Director of Public Prosecutions that on the evidence before this tribunal we find that there are sufficient grounds to conclude that Paria’s negligence could be characterised as gross negligence and consequently criminal we do not conclude that the same is true of LMCS as we are of the view that they were effectively prevented from pursuing a rescue by Paria.

41. Recommendation 41

That the DPP consider charging Paria with what is commonly known as Corporate Manslaughter.

42. Recommendation 42

That the 6 month time limit be extended to 12 months on the application of OSH Authority to the Industrial Court where they can show good reason.

43. Recommendation 43

That the 2 year time limit be extended to 3 years on the application of the OSH Authority to the Industrial Court where they can show good reason.

44. Recommendation 44

That OSH Agency complete their investigation if they have not already done so

That OSH Authority then consider instigating summary proceedings against those we have herein identified. NOTE: with the limited timescale now available to them (ie 24 February 2024).

45. Recommendation 45

All designated “high-risk jobs” must ensure that JSA is not generic. It must address the particular task with in-depth analysis of all potential hazards and the necessary mitigation steps to be adopted. Specifically, in relation to Diving Operations, a section should be included, titled “Differential Pressure Conditions and Hazards

46. Recommendation 46

Work permits must also reference the applicable JSA and all personnel must sign that they have read it. Where specific hazards such as AP are identified in the JSA they should appear on the Work Permit as having been considered and either neutralized or ameliorated. What is essential is that everyone knows there is a potential latent AP hazard where they are working.

47. Recommendation 47

Any changes to original procedures set out in an MS and JSA should be carefully managed and a new or amended MS and JSA developed. Having and executing a robust management of change “MOC” procedure is essential in ensuring effective communication and safety.