There’s not a lot to do in Niue, concedes Warren Banks, the attorney-general of the world’s smallest country. A coral rock roughly halfway between Sydney and Honolulu with a population of 2,080 and falling, it boasts brilliant diving (if you are not scared of the poisonous sea snakes), good game-fishing, lots of coconuts … and not much else.
But nowhere is now too remote to pick up the gossip of the global village, and by fax and satellite phone, Banks has been keeping up with the claims (and denials) of cover-up trickling out of the Longford royal commission 4,000 kilometres away across the international dateline. He has a disturbing sense of deja vu.
Six years ago, as the Coroner of the-then British Crown colony of Hong Kong, this New Zealand lawyer was presiding over the inquest into another terrible explosion, at the huge Castle Peak coal-fired power station, on the waterfront at Kowloon, on the Hong Kong mainland. The power station was owned by a company called Capco, which in turn is 60 per cent owned by the Exxon Corporation.
On August 28, 1992, there was an almighty blast as two three-storey-tall tanks storing liquid hydrogen used for cooling the power generator blew up, sending a mushroom-shaped cloud billowing high in the sky. Fortunately it was morning tea time, otherwise the toll would have been considerably higher than the two dead and 19 injured who were eventually found in the wreckage.
The Hong Kong Fire Services Department investigators concluded that the cause of the blast was air getting into one of the storage tanks – hydrogen can spontaneously explode when mixed with 15 per cent of oxygen. The air got in, they decided, because of a worn teflon fitting which had not been inspected or maintained in the seven years since its installation.
As at Longford, Exxon flew in an international crisis team to investigate – a protocol described in company manuals as OIMS, Operational Integrity Management System. The team was co-ordinated by Exxon’s then-general counsel in Hong Kong, Robert W. Brown, and it eventually publicly presented a very different explanation of the cause of the explosion – water undetect- ably seeping into some underground pipes.
Banks listened, and at the conclusion of the inquest, instructed the jury that there was insufficient evidence of recklessness or gross negligence by Capco, and it returned a verdict of accidental death. A second inquest was later held after a newspaper revealed that evidence may have been withheld from the first, and this time the decision was “death due to lack of care” – a verdict overturned on appeal.
And there the matter would have rested if it hadn’t been for Michael Ford, a barrister engaged to represent Exxon at the inquest. Ford was well aware that there were crucial documents which were never presented to either inquest, and when he insisted that he could not conceal them from the court, he was sacked from the case by Exxon.
Ford swore in depositions filed in Florida in a Federal court damages claim against Exxon that – as at Longford – the Exxon investigation of the Hong Kong explosion resulted in two reports. There was a confidential “blue” report of about 600 pages intended for Exxon’s internal use which gave a detailed critique of the disaster, and a much shorter “red” report produced at the inquests.
The “blue” report, along with other documents which were not produced at the inquests, gave weight to the Fire Department’s view that a worn-out fitting might have caused the blast. One of Exxon’s Hong Kong solicitors, Guy Hardaker, wrote to the company: “To put it bluntly, we are damned if it [the `blue’ report] is disclosed, and damned if it is not.”
Hardaker also advised that Exxon’s role in the investigation be kept quiet. “Our concern … is to avoid reference to their role in the investigative process. This is to reduce the possibility that the families of the deceased will sufficiently appreciate the involvement of Exxon and the possibility of obtaining higher punitive damages in the United States.”
In one handwritten report, Ian Johnson, who was the maintenance superintendent at the plant, confirmed that ” … no internal inspection [of the hydrogen tank] has been carried out … in the last three years … the difficulty from my point of view is getting the [power] plant shut down for a period of up to a week.”
Most damning of all, the power station’s chief scientist, Dr Richard Jack, wrote: “There may be a problem that we seem to have conveniently `lost’ documentation on some fairly critical issues … we shall need to be careful to avoid charges of a cover-up.”
Three years went by before Ford tracked down Banks in New Zealand and showed him these documents which were not produced at the inquest over which he presided. In an affidavit filed in support of Ford’s claim, he says the “new” evidence convinces him that “… there is evidence of gross negligence which in my view … would have necessitated me leaving to the jury a possible verdict of manslaughter. [Exxon and its partner] went to considerable lengths to ensure that the true cause of the explosion did not emerge at the inquest.”
Banks calls for a police investigation and a new inquest saying: “As the coroner conducting the inquest, I believe that both the inquest jury and myself were gravely misled by the withholding of this crucial evidence … I now fully understand the reasons for the Hong Kong Court of Appeal using the words ‘cover-up’ and ‘criminal conspiracy’.”
Pub: Sydney Morning Herald
Pub date: Wednesday 24 March 1999
Section: News And Features
Sub section: Hong Kong – Features
Word count: 963
Classification: Accidents And Emergencies/Accidents/Gas Company/Exxon Corp
Geographic area: Hong Kong
Caption: Power problem …
1. Warren Banks, the former Hong Kong coroner and the damaged Castle Peak power plant.
2. Tanker spill … the crippled Exxon Valdez is towed out of Prince William Sound in 1989.
3. The Longford explosion in Victoria last year.