page 1 1 Thursday, 17th July 2008 2 (10.39 am) 3 CAMPBELL HETHERINGTON DOWNIE (continued) 4 Examined by MR MARTIN (continued) 5 Q. My Lord. 6 Mr Downie, I was asking you questions yesterday 7 about the passage in your Inquiry statement in 8 particular between paragraphs 83 and 87 where you 9 referred to the communications between the 10 Health & Safety Executive and, in particular, Mr Stott. 11 I also asked you questions about memos which passed 12 between you and Mr Stott at that time in which it was 13 indicated that you were aware of the interest that the 14 Health & Safety Executive was taking in aspects of the 15 LPG system at that time. 16 What I would like to begin this morning by doing is 17 to ask you about the recommendation 11 which was 18 contained in Mr Ives' letter of 8th September 1988 and 19 which you have quoted at the top of page 18 of your 20 Inquiry statement. I quote what Mr Ives' letter said: 21 "Part of the underground pipework carrying LPG 22 vapour into the building should be excavated. The state 23 of the pipework and any corrosion protective coating 24 should be examined by a competent person and any 25 recommendations made as a result of this inspection page 2 1 should be carried out. A pressure test of the pipework 2 should also be carried out." 3 Could I have that letter on the screen, please. It 4 is 11444 and 11445. 5 Mr Downie, I want to be absolutely clear about your 6 position. Did you see a copy of that letter at or about 7 the time it was received, perhaps shown to you by 8 Mr Stott or otherwise brought to your attention? 9 A. No, I've never seen a copy of that letter before and the 10 quotation at the top of this letter is an abstract from 11 a document that was not prepared by myself. I think it 12 was part of another witness statement. 13 Q. If you did not see a copy of the letter at the time, did 14 either Mr Stott or anyone else who had been involved in 15 the communications with the Health & Safety Executive 16 advise you that a concern had been expressed about the 17 underground pipework carrying LPG vapour into the 18 building? 19 A. No, I had no such notice of that. 20 Q. Were you aware or had anyone brought to your attention 21 that there was a concern about the state of any 22 corrosion protective coating on that pipework? 23 A. No, there was no discussion of that. 24 Q. So is it your position, Mr Downie, that in September 25 1988 when these events were occurring, the visits by page 3 1 Health and Safety inspectors and the correspondence with 2 Mr Stott was taking place, is it your clear evidence 3 that you knew nothing of concerns being expressed about 4 the corrosion protective coating of the underground 5 pipework -- 6 A. That's my position -- 7 Q. -- in the yard? 8 A. Yes, that is so. 9 Q. Thank you. 10 If I can return then to your Inquiry statement at 11 paragraph 89 where we broke off yesterday, which is at 12 the bottom of the same page (that is page 18): 13 "On 10th February 1998 ICL Technical Plastics 14 Limited initiated a change of LPG suppliers from Calor 15 to Johnston Oils Limited trading as J Oil and J Gas. An 16 account for supply was opened with ICL Plastics Limited. 17 "A single 2-tonne 2,000 litre J Gas tank was 18 substituted for the Calor tanks on 26th March 1998." 19 Could I have the documents beginning at 012054. Is 20 that the bulk tank agreement? Perhaps if we could have 21 it up again, full page. 22 A. Yes, that's what it says at the head of that letter. 23 Q. That particular one is dated 9th February 1998. 24 Do we see that the customer's name is ICL Plastics 25 Limited, which is what you said at the bottom of page 4 1 paragraph 89? 2 A. Yes, I see that. 3 Q. It is not ICL Technical Plastics Limited, is it? 4 A. No, it's not. 5 Q. Could I have the next page, 12055, please. I think again 6 that is just a customer account application form. The 7 date at the bottom right-hand side is 10th February 1998 8 and we see that the person who signed it was M Brownlie 9 (that is Margaret Brownlie) and her position is given as 10 Accounts Office Manager. Is that right? 11 A. That's correct. That form was consistent with the 12 previous form we looked at and both were in the form of 13 a credit application for the convenience of ensuring 14 that we were not putting a new installation in, we were 15 changing, as far as ICL Group was concerned, a supplier 16 of a raw material, LPG, and that we were going 17 through -- we were over-convincing, having come from 18 Calor, that we would have a very good payment record. I 19 think that was why we did not directly to ICL Technical 20 Plastics. 21 Q. Could I have the next page, please, which is 056. There 22 again, we can see that the customer name is ICL Plastics 23 Limited, top left-hand corner, and the contact name is M 24 Brownlie. 25 A. Yes. page 5 1 Q. Given that we saw on the previous document that her 2 title was Accounts Office Manager, was she the Accounts 3 Office Manager of ICL Plastics Limited? 4 A. That's correct, yes. 5 Q. I think I am right in saying that she ultimately became 6 a Director of ICL Plastics Limited but not until a date 7 late in 1998 -- I think 17th April 1998. Is that right? 8 A. That is correct, yes. 9 Q. Could I have 12059, please. 10 This is a letter signed by Miss Brownlie, dated 10th 11 February 1998, and it is addressed to Calor Gas and, in 12 effect, it is giving notice to Calor Gas that the 13 agreement for the supply of LPG gas with Johnston Oils 14 Limited has been entered into. Is that correct? 15 A. That is what it would appear to be, yes. 16 Q. Again, we can see that this is on the notepaper of ICL 17 Plastics Limited. 18 A. We did not use ICL Technical headed paper, we used ICL 19 Plastics paper or should I say Miss Brownlie used that 20 for all internal and external -- sorry, external 21 correspondence. 22 Q. That may be the case, Mr Downie, but can we agree that 23 the contract that was entered into with J Gas in 1998 24 and indeed the notice that was given to Calor Gas as 25 a result were actions taken by ICL Plastics Limited? page 6 1 A. Yes, they were indeed. 2 Q. Thank you. 3 Reading on in your Inquiry statement at paragraph 4 91: 5 "I understand that a pressure drop test occurred in 6 1998 when David Inglis (on behalf of J Gas) carried out 7 installation of replacement LPG tank. 8 "From paperwork I have seen I note that a further 9 pressure drop test was carried out in 2002 by the same 10 individual. I have never met this witness before and 11 was not involved in any of these communications. 12 "Regarding the time-line of the history of the LPG 13 installation, I have seen the history/time-line prepared 14 by the HSE." 15 Could I have 12770 up, please, the dates of 16 installation, tank inspection, tank change, regulator 17 change, et cetera, are not disputed. 18 I do not think I want to take time looking at it in 19 detail, Mr Downie. There is no dispute about this, but 20 that is the document, the chronology of events that you 21 are accepting as being reliable in this regard; is that 22 right? 23 A. I would accept that, yes. 24 Q. So it is not a matter of dispute. 25 "I have no knowledge of any management and control page 7 1 systems regarding use of the LPG although I understand 2 that there were systems in place concerning the delivery 3 of the LPG supply. I am not aware of the details of 4 these. 5 "I have not seen any maintenance schedules 6 concerning the LPG installation." 7 Mr Downie, given that you were a Director of 8 ICL Plastics Limited and given that they were 9 responsible both for the original LPG installation and 10 the contract with Calor Gas and responsible for the 11 subsequent change to and contract with J Gas, why as 12 a Director of ICL Plastics Limited were you not aware of 13 matters such as the maintenance schedules? 14 A. All such matters of maintenance schedules had, with 15 regard to the physical capital assets of ICL Technical 16 Plastics transferred to them in or around about 1973 and 17 both for Calor and subsequently for Johnston Oils that 18 arrangement would not change. 19 Q. But we discussed yesterday, Mr Downie, that no formal 20 agreement was ever entered into by ICL Plastics Limited 21 transferring liability for any aspect of the LPG system. 22 We know that ICL Plastics Limited was the customer of 23 Calor, was responsible for installing the pipework and 24 was subsequently the customer of J Gas. 25 Do you now accept that the responsibility for the page 8 1 LPG system was at all times, in fact, that of ICL 2 Plastics Limited of which you were a Director? 3 A. I would not say so because we covered this under the 4 issue of Calor; that is that the inspections of the 5 pipe, the maintenance schedules, et cetera, fell to ICL 6 Technical Plastics as part of their COSHH and other 7 arrangements and ICL Plastics Limited did not carry out 8 COSHH or any other inspection arrangements on behalf of 9 ICL Technical Plastics. 10 Q. But given that it is now the position that we know that 11 ICL Plastics Limited had the ultimate liability under 12 the arrangement with Calor, the arrangement for the 13 pipework and the arrangements with J Gas, will you now 14 accept that, in fact, it was all along ICL Plastics 15 Limited's responsibility ultimately to ensure that 16 whatever appropriate steps had to be taken were taken? 17 A. There would be two parts to that. We were undertaking 18 in the first productions today to pay bills. It was 19 a credit control transaction between Johnston Oils and 20 ICL Plastics. I did not see any contract that related 21 the pipe maintenance or anything else produced by 22 Johnston Oils and provided to ICL Plastics. 23 Q. That is right because as far as the Inquiry is aware, no 24 documentary evidence of any pipe maintenance agreement 25 with anybody was ever entered into, whether by ICL page 9 1 Plastics or by ICL Technical Plastics. 2 The situation as a result of that was that ICL 3 Plastics Limited remained liable all along, did it not, 4 Mr Downie? 5 A. I don't think so. There's a clear division between -- 6 and it's probably a legal matter that I have no ability 7 to discuss here; it is beyond my knowledge -- but as 8 property owners we would have -- and owners of the land 9 under which the pipe was buried -- we would have 10 a liability to, I think, ask the company who were the 11 occupiers would fill their occupier's obligations to us 12 and to ensure that there was no risk to health in 13 respect of their maintenance schedules and risk 14 assessments and all the other issues that would arise in 15 terms of maintenance. 16 That was certainly the case for pipes that were 17 internal to the building and there's no reason to assume 18 that that would not continue for pipes outside the 19 building. 20 Q. Why do you say that, Mr Downie? Why was there no reason 21 to assume, if you have a situation in which the gas is 22 supplied into a tank which remains the property of the 23 supplier under an agreement at all times with ICL 24 Plastics Limited? The contract for the supply of the 25 gas is with ICL Plastics Limited. The installation of page 10 1 the underground pipework on the outside of the building 2 was carried out by ICL Plastics Limited. 3 I can understand why you may simply have proceeded 4 as you did upon an acceptance and understanding that ICL 5 Technical Plastics Limited somehow was taking upon 6 itself these responsibilities, but what I am putting to 7 you now is that with the benefit of hindsight and having 8 seen all of the documentary material that we looked at 9 yesterday and today, as a Director of ICL Plastics 10 Limited, do you not now accept that it was ICL Plastics 11 Limited which had the ultimate liability for aspects of 12 the LPG installation, including the pipework buried 13 under the yard? 14 A. I have to say that the pipework was buried under the 15 yard in 1969 and that at that time we would have the 16 liability. 17 When the companies changed their structure, that 18 liability -- and I acknowledge that no document was 19 found formally transferring the liability, the original 20 liability, to ICL Technical Plastics, but there's no 21 doubt in my mind that ICL Technical Plastics maintained 22 the assets in all parts of the building, plant, 23 equipment and everything else that they occupied. 24 I think I would have to say that it would be 25 unlikely that we (that is, ICL Plastics Limited) would page 11 1 undertake to go on to ICL Technical Plastics' floor and 2 pursue their COSHH responsibilities, including piping. 3 Q. Why not, Mr Downie? Why was it not possible for the 4 holding company, never mind the heritable proprietor of 5 the building in which the activities were taking place, 6 why was it not possible for ICL Plastics Limited, for 7 example, formally to write to the Managing Director of 8 ICL Technical Plastics Limited and either bring to his 9 attention or request information about what they were 10 doing in relation to the LPG supply system? 11 A. I've seen no letter to the effect that we did that or 12 that we did not do that. If you are saying is it 13 possible, yes, it is possible. If you are saying is it 14 probable in this instance, I think it's probably not the 15 case that we would have written to them in that respect. 16 Q. But you could have done, could you not? 17 A. We could indeed have done that. Yes, we could have 18 done. 19 Q. This was not a large organisation with many different 20 locations. You were in the building twice a week, were 21 you not? 22 A. No. I was in the building -- if we're talking about 23 this time, 1998, it's most unlikely that I would have 24 been in the building at the time this contract with J 25 Gas was signed and it would also be the case that page 12 1 I would be in the building after 5.00 when all the other 2 activities in the building had ceased to pursue the 3 other activities that I have referred to in the very 4 earliest part of this statement. 5 Q. In paragraph 7 of your own Inquiry statement, Mr Downie, 6 you say: 7 "From the 1990s onwards once or twice a week, 8 typically on Tuesday and Friday evenings, I met Margaret 9 Brownlie at ICL's office for this purpose and to discuss 10 finance." 11 That is your own evidence. Were you not, in the 12 1990s, at the time that this transfer from Calor to ICL 13 in particular took place, regularly in the building? 14 A. "Regularly" I don't think is twice a week and it was to 15 no particular time schedule. There were many occasions 16 when I would meet with Margaret Brownlie and travel to 17 other sites round the Group. 18 In that kind of situation, I would not go into the 19 building on these occasions. We would go and pick 20 Margaret up from the building and go to Dundee or where 21 else. So, in other words, I feel that we're trying to 22 tie two events together that don't relate very well. 23 Q. Let me approach it from a different direction, 24 Mr Downie. Is it fair to say that, however the 25 legalities were arranged, in practical terms you gave no page 13 1 thought either to the condition of the underground 2 pipework, how it ought to be maintained, or whether or 3 not anyone was actually giving thought to the 4 underground pipework? 5 A. I would say that I did not focus on that issue. It was 6 not one which came to mind, that is it was entirely out 7 of mind. 8 Q. So is the answer to my question yes? 9 A. Could I just go back to the question I'm answering? 10 Q. I will read it back to you: 11 "Is it fair to say that, however the legalities were 12 arranged, in practical terms you gave no thought either 13 to the condition of the underground pipework, how it 14 ought to be maintained, or whether or not anyone was 15 actually giving thought to the underground pipework?" 16 A. That is correct. 17 Q. Thank you. 18 Reading on paragraph 96 of your Inquiry statement: 19 "ICL Technical Plastics Limited did consider 20 switching the energy supply from the LPG oven to natural 21 gas. I have seen documentation recovered from the site 22 which shows that energy consultants advised on fuel 23 options. I was not involved in any of these 24 consultations. I cannot say why they did not switch 25 from the use of LPG to natural gas." page 14 1 That is something that happened in 1998 and I will 2 come to it in a moment, but could I ask first, please, 3 for document 11427 again. 4 This is the entry from the health and safety record, 5 Mr Downie, about which we have already heard some 6 evidence and, indeed, I asked you about this yesterday 7 because it concerns the events in 1988, in particular 8 the visit by Mr Tyldesley and Mr Ives, their meeting 9 with Mr Stott which led to the correspondence we have 10 already looked at. 11 Could I ask you to look at the entry dated 1/9/88, 12 please, if that can be brought up. This was of course 13 a visit before Mr Ives' letter was actually sent because 14 it was sent on 8th September. What it says is -- it is 15 signed by Mr Ives: 16 "Visit with Mr Riley. Mr Stott, Managing Director, 17 seen. Visit to discuss Mr Tyldesley's report. Mr Stott 18 opened the meeting by announcing that he was 19 transferring his oven from LPG to mains gas which will 20 reduce the need for the LPG store." 21 Then I need not read on. 22 If Mr Stott opened the meeting by making that 23 announcement, Mr Downie, did you know anything about it? 24 A. No, I didn't know about that meeting and Mr Stott's 25 decision that he would change the gas from LPG to page 15 1 natural gas, except to say that I said in separate 2 correspondence, which we have gone over previously, 3 about drench pipes and the burial of tanks, I said very 4 clearly that I would not stand in the way, in that 5 letter, of a change to natural gas. 6 Q. We know from the memoranda which passed between you and 7 Mr Stott in August 1988 that he had brought to your 8 attention the visit by the Health & Safety Executive and 9 his view that they could not be deflected much longer. 10 Is it not reasonable to assume, Mr Downie, that in 11 the context of that communication he raised with you the 12 possibility of one answer being a change from LPG to 13 mains gas? 14 A. I can't say what would be in Mr Stott's mind at that 15 time and I really don't know whether he would have 16 communicated that in 1988, unless there's a letter that 17 corroborates that, that is that I have accepted his 18 verbal proposal, then I have to rely on the written 19 correspondence that we have between us. 20 Q. Mr Downie, I am not aware that there is any such 21 corroborating information but I am asking you for your 22 evidence about your recollection. 23 It may be that you do not remember Mr Stott raising 24 the possibility of transferring from LPG to mains gas at 25 that time or it may be that you remember positively that page 16 1 he did not do that. But is it possible that he raised 2 a change from LPG to mains gas as a potential solution 3 to the issues raised by the HSE in 1988? 4 A. It is possible that he raised that but I have no 5 knowledge of him raising that. 6 Q. Given that there would be capital costs as a result of 7 that and given the nature of the company and the 8 companies' relationships and your ultimate 9 responsibility as Chairman of the holding company and 10 meetings with Miss Brownlie, particularly in relation to 11 finance, would Mr Stott not have been in trouble if he 12 had made a commitment to change from LPG to mains gas 13 without consulting you and getting your agreement? 14 A. Absolutely not, he would not have been in any trouble 15 whatsoever. He would make that decision jointly with -- 16 possibly as a result of his communications with Calor 17 and the Health and Safety Authority. 18 Q. But surely, Mr Downie, on the arrangements that you have 19 explained to the Inquiry he could only decide to make 20 such a substantial change in the arrangements at 21 Grovepark Mills with your authority, could he not? 22 A. That would be wrong. That is a wrong proposition to 23 present to me. He could make these changes 24 unilaterally. 25 Q. In any case, Mr Downie, we know that there was no change page 17 1 from LPG to mains gas at or about that time and other 2 than what Mr Stott is recorded as having said to the HSE 3 inspectors, there is no material of which the Inquiry is 4 aware that it was under contemplation. So do you have 5 any explanation as to why Mr Stott may have made 6 a representation to the HSE officers which did not have 7 any substantial basis? 8 A. I could not say what was in his mind. 9 Q. With regard to what we learned yesterday about the 10 representation made about a control of land beyond the 11 yard (that is to say, the areas where car parking was 12 taking place), as I understand it, despite 13 a representation made to the Health & Safety Executive, 14 the land in question was not under the control of one of 15 the ICL Group of companies, do you have any comment on 16 the suggestion that there appeared to be two examples of 17 representations being made on behalf of the ICL Group to 18 the Health & Safety Executive which had no basis in 19 fact? 20 A. If we say, instead of the ICL Group, "ICL Technical 21 Plastics", I would agree with you. 22 Q. Mr Downie, can we move then on to -- 23 THE CHAIRMAN: Just a moment, Mr Martin. 24 Mr Downie, if you look at the entry for the visit of 25 Mr Ives and Mr Reilly on 1st September, does it not page 18 1 appear that Mr Ives was sceptical about Mr Stott's 2 announcement that he was going to switch to mains gas, 3 because he concludes the note by saying that a letter 4 and a check visit is proposed to ensure that Mr Stott 5 kept his word. That hardly suggests that Mr Ives was 6 completely satisfied that Mr Stott was being sincere? 7 A. I've got 1/9/88 in front of me on the screen but I don't 8 think that is the Ives letter you are referring to. It 9 says Tyldesley. 10 THE CHAIRMAN: No, I am talking about what Mr Ives reaction 11 was. 12 A. Okay, I agree with you entirely. 13 MR MARTIN: My Lord, could I have 11524, please. This is 14 a memorandum that we looked at yesterday, Mr Downie, and 15 it was dated 18th August 1988 and it is one of the 16 communications between you and Mr Stott and, in 17 fairness, do we see in the second paragraph, which is 18 the one that says: 19 "We have reached the end of the road in 20 side-stepping their requests (that is the HSE requests) 21 since 1982." 22 Do we see Mr Stott say: 23 "I've taken the precaution of seeking information on 24 the cost of the two alternatives which we may be faced 25 with. One is the change over of the batch oven to town page 19 1 gas." 2 Do you see that? 3 A. No, I've got the wrong thing on the screen. I've got -- 4 Q. I beg your pardon, it entirely my fault. I gave out the 5 wrong number. It is 11529. Could we have the middle 6 paragraph highlighted, please. 7 I will just let you read it, Mr Downie. I am not 8 going to read it out again. 9 A. I see the passage. 10 Q. So it does appear that Mr Stott had taken that 11 precaution and had looked himself at the cost of the 12 change over of the batch oven to town gas? 13 A. Yes. 14 Q. But what I put to you a moment ago remains the case, 15 there was not any agreement to do so such as might 16 justify what was said to Mr Ives. 17 If we go back to that which is 11427, please, it 18 says: 19 "Mr Stott opened the meeting by announcing that he 20 was transferring his oven from LPG to mains gas." 21 There was never any such decision, was there, 22 Mr Downie? 23 A. I'd agree with that. 24 Q. Could we then turn to the events concerning the transfer 25 from Calor Gas to J Gas. page 20 1 Could I first, please, have 12028. 2 These are events at the beginning of 1998; so 10 3 years later. Can we see that at that stage there had 4 been a meeting with a firm called McKinnon & Clarke re 5 gas supply. The first line of the note says: 6 "On gas conversion from LPG to main saving would 7 be ..." and the figure is specified. 8 A. Yes, I confirm that. I see what's on there. 9 Q. By reference to the note, can we see that those who were 10 present at the meeting were Callum Stuart, who we will 11 see in a moment was an employee of McKinnon & Clarke 12 consultants, the third person is M Brownlie, who 13 I assume was Margaret Brownlie? 14 A. Yes. 15 Q. Do you have any explanation of who Ronnie was? 16 A. I've no idea at all. 17 Q. Can we see that after reference to "on gas conversion 18 from LPG to main" in the first line there is then: 19 "Capital conversion via Boiler-Scot", the company we 20 have heard about. 21 There is then reference to: 22 "Currently have 2-inch line pipework, not to current 23 regulations." 24 What does that mean; do you know? 25 A. No, I've no idea. page 21 1 Q. It is not clear what pipework is being referred to but 2 can we assume that it was the pipework which at that 3 time was carrying the LPG, because it is the conversion 4 of that to mains gas that was under consideration? 5 A. I don't think so because I don't think the LPG pipe was 6 a 2-inch pipe; it was half an inch and a quarter. 7 Q. Of course the pipework even if it was a reference 8 incorrectly by dimension to the LPG pipework, it does 9 not say whether it is referring to the pipework inside 10 the building or at any other point, does it? 11 A. Precisely. 12 Q. There is then a list of costs of various things that 13 required to be done, including running gas pipework. 14 Then underneath it says: 15 "Result of study they were asked to undertake. 16 "Current LPG. Recommendation swap over to J Gas." 17 Then there is a reference to various prices and then 18 underneath that: 19 "Their recommendation is we switch the alternative 20 LPG supplier. Most companies they deal with are not 21 interested in the move is capital cost is greater than 22 saving over a period of approximately 18/24 months." 23 We will see in a moment that is a record of 24 a recommendation presumably given by Mr Stuart at the 25 meeting that the alternative supplier of LPG, J Gas, be page 22 1 adopted rather than the existing one. 2 Then in the last line we see: 3 "Asked them to put recommendations in writing and 4 I will pass them to relevant people." 5 Upon the basis that this minute or memo was created 6 by Miss Brownlie who was at the meeting, who were the 7 relevant people to whom she would pass the 8 recommendations? 9 A. People that she would pass the recommendations would be 10 ICL Technical Plastics. 11 Q. Mr Downie, in January 1998, as we know from the 12 subsequent contractual details with J Gas, Miss Brownlie 13 was an employee of ICL Plastics Limited, was she not? 14 A. Yes, indeed. 15 Q. She became a Director of ICL Plastics Limited but only 16 a few months later on 17th April 1998? 17 A. Yes, that's true. 18 Q. She was not an employee of ICL Technical Plastics 19 Limited or a Director of that company, was she? 20 A. Not at any time. 21 Q. This document by itself records that substantial costs 22 might be involved, including a total of over £18,000. 23 Do you see that? 24 A. I'm just reading down. It mentions 3-inch pipework and 25 then runs to a total value. Yes, I see that. page 23 1 Q. Is the logical conclusion not when Miss Brownlie, who 2 was an employee of ICL Plastics Limited, was seeking 3 recommendations and indicated she would pass them to the 4 relevant people and where those recommendations would 5 involve costs and potentially quite significant capital 6 costs, you must have been amongst the relevant people, 7 Mr Downie, must you not? 8 A. No, not at all. I will explain that or enlarge on that. 9 That was a piece of research when we discussed issues of 10 researching cost-effective solutions. That was a piece 11 of research that would be done for that purpose with 12 McKinnon & Clarke who were experts on various utilities 13 and we would rely on them for accurate cost information. 14 But if you take that letter alone and don't include it 15 with another production from McKinnon & Clarke (which is 16 charted analysis of the cost of LPG versus natural gas) 17 and take into account the huge long-term savings and 18 medium term savings that would result from the change, 19 you would not understand the context of that document. 20 Q. I am not asking for any judgment about the financial 21 pros and cons of whatever decision might be made, 22 Mr Downie, but the fact that substantial financial costs 23 were being considered and indeed decisions had to be 24 made about those exactly in the way that you have just 25 described, surely upon the basis even of your own page 24 1 evidence of your position in the group of companies, 2 that you would have expected Miss Brownlie to discuss 3 the matter with you. 4 A. Not in terms of her own cost research. You have to 5 accept that in 1998 this sort of research could bypass 6 me completely. I wasn't on the site and carrying out 7 any day-to-day business on these issues and it would be 8 most likely if there was a cost saving to be made that 9 would be discussed between all those concerned, that it 10 would have been done so at a meeting with Mr McColl, 11 myself and Miss Brownlie and Mr Stott and anybody else 12 concerned present. 13 Q. So perhaps I am misunderstanding, Mr Downie, are you 14 therefore agreeing that if there was such a meeting 15 about a matter such as this you would have been likely 16 to have been present at the meeting? 17 A. If I had been asked to be at a meeting, that is there 18 had been an item on an agenda of a board meeting at 19 which I sat in the chair, I would have been at the 20 meeting. But if I was not sitting in the chair and it 21 was not a meeting of that moment or significance, then 22 these would be classified as day-to-day business 23 operations. 24 Q. Are you suggesting, Mr Downie, that if one decision was 25 made of a potential capital cost of £18,051, which is page 25 1 the figure recorded in this memo, was simply 2 a day-to-day matter that you would have been perfectly 3 content if Miss Brownlie had made a decision and not 4 referred it to you? 5 A. I would have been concerned if Miss Brownlie had not 6 followed our practice, which was to prepare capital and 7 revenue budgets within our software system and to 8 include that expenditure after discussion with the 9 Directors to show what their budget proposal would be 10 and if we had included that and the budget cost outrun 11 would be beneficial to the company, I wouldn't have 12 queried it because capital cost would show up in 13 a budget of that kind, depreciated at a rate of possibly 14 20 per cent per annum so you divide the £18,000 by 5 and 15 it's a very small addition to the budget. 16 Q. Let us just perhaps look at other documents. 17 Could I have 12025, please. 18 This is a letter dated 30th January 1998 from 19 McKinnon & Clarke who I think were cost consultants and 20 it is a letter from Mr Callum Stuart who of course was 21 the gentleman recorded as having been present at the 22 meeting, Senior Energy Engineer, to Margaret Brownlie 23 and it is to be noted in the address it was addressed to 24 ICL Technical Plastics Limited. The letter reads: 25 "I am writing to confirm the details of our recent page 26 1 meeting of 29th January 1998." 2 He then discusses the current LPG costs, talks about 3 the savings, then at the end of the third paragraph 4 states: 5 "Unfortunately our investigation has shown that the 6 capital cost required to make the alteration is 7 approximately £18,000." 8 It then says: 9 "The capital cost would be appear to be prohibitive 10 and, as such, we have looked into the opportunities 11 which exist for reducing your current LPG charges. We 12 would recommend that you change supplier to J Gas who 13 require a quarterly charge ..." and so on. 14 Then the next paragraph: 15 "If you wish to go ahead will make all necessary 16 arrangements and contact you to agree a convenient date 17 to switch tanks." 18 That is confirmation, is it not, addressed directly 19 to Miss Brownlie of what appears to have been discussed 20 at the meeting on 29th January? 21 A. It appears to be that Miss Brownlie has used the 22 contents of that letter to prepare her letter or having 23 the time-line out there, this is 30th January -- 24 Q. The 30th, I think the note is the 29th. The meeting 25 took place the day before the date of the letter. We page 27 1 obviously do not know when the note was prepared but it 2 appears to have been prepared before the letter? 3 A. Yes. I think they say pretty well one and the same 4 thing. I take it that this is not intended to be 5 a recommendation to sign a contract with J Gas. I think 6 that happened long before that time. 7 Q. On the face of it, Mr Downie, I think it does appear to 8 be that. 9 A. So the agreement for Calor to relinquish its supply and 10 J Gas to commence happened after this letter. 11 Q. Yes, very shortly afterwards. We know, for example, 12 that the agreement with J Gas and the notice to Calor 13 Gas were given on 10th February 1998. So it did happen 14 within a relatively short time. But it does appear that 15 that was done upon an acceptance of the recommendation 16 of McKinnon & Clarke. 17 A. Yes, I think that judgment by ICL Technical Plastics 18 Limited and Margaret Brownlie's research into the cost 19 of gas presumably resulted in McKinnon & Clarke -- J Gas 20 being appointed. 21 Q. Could I have 12024, please. 22 This is a letter signed by Miss Brownlie to 23 Mr Stuart of McKinnon & Clarke Limited dated 3rd 24 February 1998: 25 "Dear Callum thank you for your letter of 30th page 28 1 January 1998", and she gives the reference which was on 2 the letter we have just looked at. 3 "I have passed a copy of your recommendations to the 4 various people involved. They agree we should proceed 5 with your recommendation to change our LPG supplier to J 6 Gas. I will be pleased if you could make the necessary 7 arrangements ..." 8 Who would be the various people involved, Mr Downie, 9 to whom Miss Brownlie passed her recommendations? 10 A. I think at that time there would be Mr Stott and any of 11 his managers who were technically interested in 12 retaining LPG as opposed to a switch to natural gas. 13 Q. Would you not have been one of the people to whom the 14 recommendation was passed, Mr Downie, not least because 15 it involved, on one view at least, significant potential 16 capital expenditure? 17 A. I have never seen this correspondence or participated in 18 these negotiations at any time. I only learned of these 19 after they had been brought to my notice in this 20 Inquiry. 21 Q. In January and February 1998, as we have already agreed, 22 Miss Brownlie was an employee of ICL Plastics Limited 23 was she not? 24 A. Yes. 25 Q. So she could only act under the direction of the page 29 1 Directors of ICL Plastics Limited. 2 A. Miss Brownlie was a very senior financial executive in 3 the company by that time and shortly was made after that 4 a director. She could have made a decision on an 5 economic base agreed to by Mr Stott. 6 Q. Was Mr Stott a Director of ICL Plastics Limited? 7 A. No. 8 Q. So she could not act, at least technically, on his 9 direction, could she? She could only act technically on 10 the direction of the officers of ICL Plastics Limited? 11 A. If you are saying that a person would have to give her 12 a direct instruction to proceed and that she could do 13 nothing on her own initiative, that would be wrong. 14 Q. I am not saying she could do nothing on her own 15 initiative, but on a matter of this significance, 16 Mr Downie, is the reasonable conclusion not that, as an 17 employee of ICL Plastics Limited, of which you were the 18 Chairman and one of the Directors, she was in effect 19 acting on behalf of the holding company in relation to 20 a matter concerning one of the subsidiaries? 21 A. My reading of that would be that after all the 22 correspondence that we have looked at here that the 23 upshot of it was the gas supplier would be changed. 24 I don't know why they were changing to J Gas but it 25 looks like advice from McKinnon & Clarke that a few page 30 1 pennies might be saved if we left Calor and went to 2 J Gas. If the savings were so small, I don't think that 3 there was a great difficulty taking that decision at 4 Miss Brownlie's level and facilitating Mr Stott's 5 requirement. I don't even know if it wasn't Mr Stott 6 who initiated the research into gas prices, requesting 7 Miss Brownlie to speak with McKinnon & Clarke. 8 Q. Mr Downie, whether she might have done it on her own or 9 not we know that Miss Brownlie did not make this 10 decision on her own and we know that she passed the 11 recommendations to a number of people because in her 12 letter she says: 13 "I have passed a copy of your recommendations to the 14 various people involved ..." which suggests a number of 15 people. 16 Is it not the case, Mr Downie -- and I accept that 17 you may no longer recall this as an event having 18 occurred -- but is it not likely that this was a matter 19 in which you were concerned and in which you were 20 ultimately involved in making the decision? 21 A. Absolutely not. This is new to me. 22 Q. On what basis then did Miss Brownlie subsequently sign 23 a contract with J Gas in the name of ICL Plastics 24 Limited? 25 A. I explained that the correspondence that was presented page 31 1 for her signature was in the form of a credit 2 certification. It said on it actually as part of it 3 "credit application" and what she was effectively 4 signing for was no doubt an investigation that J Gas 5 would take into our credit standing and if they were 6 satisfied would then execute an agreement. 7 Q. May I have, again, 12054, please. 8 We looked at this earlier, Mr Downie, but it is the 9 gas supply bulk tank agreement with Johnston Oils 10 Limited (J Gas) dated 9th February 1998 and the 11 customer's name is ICL Plastics Limited. 12 If you look underneath the details of the customer, 13 it says: 14 "To confirm our quotation for the delivery, 15 installation and commissioning of your bulk storage tank 16 and supply of propane gas." 17 So J Gas are confirming their quotation for the 18 delivery, installation and commissioning of your bulk 19 storage tank, which must be a tank being provided to ICL 20 Plastics Limited and supply of propane gas which must be 21 a supply of propane gas to ICL Plastics Limited. 22 Is it not perfectly clear that the contract that was 23 then signed by Miss Brownlie with J Gas was a contract 24 entered into by ICL Plastics Limited? 25 A. It was a contract from the terms in which these page 32 1 documents are entered that is the titles and names would 2 effectively mean there was a contract for the supply of 3 gas but, as I said before, I think that that was 4 technically made with ICL Plastics to satisfy Johnston 5 Gas that a credit control and a credit application would 6 be honoured because already we had established a good 7 financial (that is a payment record) with Calor Gas. 8 Johnston Gas would have no fear in us not paying our 9 bills. 10 Q. I do not want to go back over documents we have already 11 looked at, Mr Downie, but if we then consider that 12 Miss Brownlie signed, as the Accounts Office Manager, 13 a customer account application form in the name of 14 ICL Plastics Limited, however matters might have been 15 arranged internally within the Group controlled by 16 ICL Plastics Limited, are you not prepared to accept the 17 contractual arrangement which was made and therefore 18 Miss Brownlie's actings, which resulted in that 19 contractual arrangement, were done by ICL Plastics 20 Limited? 21 A. The legal position would be a contract was in the name 22 of ICL Plastics Limited for the supply of LPG; that 23 would be correct. 24 Q. May I return to your Inquiry statement, please, 25 paragraph 97 at the bottom of page 19. page 33 1 THE CHAIRMAN: We will have a break now, Mr Martin. I think 2 Mr Downie is rather tired. 3 MR MARTIN: Thank you. 4 (11.41 am) 5 (A short break) 6 (12.02 pm) 7 MR MARTIN: Could I return, please, Mr Downie, to your 8 Inquiry statement at page 19 and I shall begin reading 9 at paragraph 97: 10 "In relation to the pipework installation within the 11 factory, I have no specific knowledge as to when such 12 maintenance on the pipework was carried out. I would 13 say that the person responsible for general maintenance 14 of appliances within the coating shop was Bill Masterton 15 overseen by respective directors. I am not aware of 16 records kept of routine maintenance as these were done 17 by Stewart McColl. 18 "Natural gas. 19 "When we first occupied the building there was a gas 20 main the Grovepark Road. I recall early on the Gas 21 Board severed the connection for us, as we were fearful 22 of the pipe leaking as the flats had all been 23 demolished. 24 "Installation at Grovepark Mills was installed and 25 tested by a specialist industrial gas contractor. page 34 1 I cannot remember the name of the contractor. 2 "I recall that there was a rerouting of the pipework 3 from the mains supply through the Stockline building. 4 My recollection is that mains gas was run in through 5 Stockline from a 6-inch Transco mains to a 2-inch pipe 6 which then went on to supply ICL Tech and its ovens. 7 I cannot remember when this took place. It was a long 8 time ago. 9 "Spurs for central heating were installed by CORGI 10 specialists. Again, I can't recall the name of the 11 contractors. I am not aware of any documents being 12 recovered that can assist in this regard and I can't 13 recall the details. 14 "When we introduced natural gas for some of the 15 ovens approximately 14 years ago, we retained LPG for 16 the one oven. I recall Bill Masterton had said that we 17 needed to retain it because it was clean. Natural gas 18 provided a cheaper alternative for the other ovens. The 19 installation was done by the Gas Board up to the meter 20 and to test points and I think Stewart McColl used gas 21 professionals for the pipework within the Stockline 22 building and to the coating shop within the main factory 23 for ICL Tech and they would also have certified up to 24 the ovens." 25 Just if I may conclude briefly, Mr Downie, on two page 35 1 matters in relation to both natural gas and LPG and the 2 possibility that the LPG supply might have been replaced 3 by natural gas, two particular considerations have been 4 referred to earlier in the evidence and I would just 5 like to ask you about your comment for each of these. 6 In the first case it had been suggested that it 7 would not be a good idea to change the LPG oven to 8 natural gas because the company or the mills, the 9 operation, would then be relying solely on natural gas 10 and, obviously, if there were two different gas supply 11 systems there was a greater security of supply. 12 Was that ever a consideration that you were aware 13 of? 14 A. I've never heard of that consideration and do not 15 believe there's any document that relates to it that we 16 have. 17 Q. I think that is fair. We have not seen any document, it 18 was just a witness who said that was one possibility. 19 The other suggestion as to why it might not have 20 been appropriate to change the LPG oven to natural gas 21 was that somehow natural gas could not provide the same 22 quality of heat within the oven and, again, there is no 23 document referring to this but it just had been 24 a suggestion as to why the change could not be made. 25 Was that ever a factor that you were aware of? page 36 1 A. I'm aware of the fact that generally propane is 2 considered a clean gas and that particularly with 3 forklift trucks that they might be better for the 4 mechanical performance of their engine than, say, 5 a diesel and I think that it might be considered by 6 people who have a highly technical process and would 7 prefer a clean gas to natural gas which may have some 8 contaminants in it. 9 Q. But was it ever actually a factor about whether or not 10 a change might be made that you can recall? 11 A. In our instance it would never be a factor, in my 12 opinion, but I think Bill Masterton had felt that he 13 preferred propane for some reason that I would not be 14 aware of. 15 Q. Thank you very much indeed. 16 Returning to your Inquiry statement under the 17 heading of "Health and Safety", paragraph 103 on page 18 20: 19 "ICL Tech Limited regularly carried out company wide 20 health and safety management reviews, safety manuals, 21 rule books, training and competence records were all 22 destroyed in the accident. 23 "At the time of the explosion Stewart McColl was 24 responsible for health and safety at ICL Tech Limited, 25 Margaret Brownlie, Director, was responsible for health page 37 1 and safety for ICL Plastics Limited's offices. 2 "The person responsible at the premises for making 3 and implementing risk assessments and their 4 implementation for the premises at Grovepark Mills was 5 a director of both ICL Plastics Limited and ICL Tech 6 Limited: Stewart McColl. Tragically he died in the 7 explosion. 8 "I was not directly involved in health and safety 9 matters for many years but I have been shown documents 10 which were found in the rubble in the aftermath of the 11 explosion." 12 You then go on to deal with risk assessments but 13 I wonder before I do that if I could just ask you to 14 look at one or two other documents. 15 Could I have up, please, 11256 and 7. 16 This, Mr Downie, appears to be a memo from you to 17 Mr Stott dated 23rd August 1988 concerning a bill for 18 spectacles. The second page is the bill. It is very 19 difficult, I am afraid, to read as far as I am concerned 20 but it seems to be from an optician in Renfrew and I am 21 not entirely clear but I think it is partly supply new 22 lenses and new side shields. 23 As I would understand this, it was about the 24 provision of safety glasses. Is that correct? Safety 25 spectacles? page 38 1 A. Yes, it reads that way. 2 Q. Underneath your signature has been written: 3 "Unbreakable lenses for the inspector incorporated 4 into safety specs, NB dog and white stick not charged 5 for." 6 Could I have up, please, 11525. This is 7 a memorandum from Mr Stott to you dated 24th August 1988 8 and it says: 9 "Re your memo 23rd August regarding cost of lenses, 10 these are unbreakable lenses for the inspector, 11 incorporated into safety spectacles. NB dog and white 12 stick not charged for." 13 Is that an exchange of memoranda between you and 14 Mr Stott about a bill concerning safety spectacles? 15 A. It says spectacles on that letter from Mr Stott and it 16 says: 17 "The cost of lenses, these are unbreakable lenses 18 for the inspector, incorporated into safety spectacles." 19 Yes, that's correct. 20 Q. Thank you. 21 Could I have up 11531, please. This is a document 22 headed "Information notice": 23 "Dear Stewart, Frank, Eric, Colin, David, Mike", and 24 it is a memo or item headed "Consumer Protection Act 25 1987" and I do not want to read the details. It page 39 1 is about matters concerning aspects of health and safety 2 and the Consumer Protection Act. 3 Was this a memo prepared or an information notice 4 prepared by you, Mr Downie? 5 A. The signature at the bottom doesn't look like the normal 6 signature that I've given on other similar documents, 7 but it could have been that I signed CHD as I was 8 leaning on an obstruction or a lump or something like 9 that. I would think that probably be, in the context of 10 the document from me, yes. 11 Q. Could I have up 1153 -- I am sorry, I should perhaps 12 have said at the bottom of the information notice in 13 handwriting is written: 14 "Attached is a sample of the type of letter we are", 15 I think it, "consistently receiving. Is this enough?" 16 Whose handwriting is that? 17 A. That's Mr Stott's. 18 Q. If we could please have 11532. 19 Does that appear to be a letter under the heading of 20 "Product liability", in this case from Marconi 21 Instruments, Scotland, which may have been the example 22 letter that Mr Stott was referring to? 23 A. I would suspect so, yes. 24 Q. Could you then go to 11530, please. This is 25 a memorandum from Mr Stott to you headed, "Consumer page 40 1 Protection Act", dated 9th June 1988 and in it it is 2 said: 3 "Attached is a sample of the type of letter we are 4 consistently receiving." 5 A. Yes -- 6 Q. "Is this enough?" 7 Again, without going into the merits of this, 8 Mr Downie, which do not matter in their own right, that 9 is an example again of your being involved and being 10 brought into involvement by Mr Stott on a matter which 11 might be said to be an operational matter, might it not? 12 A. It's not operational. Perhaps it would be better 13 explained as an insurance issue. It might also be 14 explained as a contractual issue and these issues of 15 insurance and legal contracts were part of a service 16 that the Group and each of its members, member 17 directors, would provide to subsidiaries. 18 Q. I shall move on on that. 19 Could I have up, please, 12203. I think perhaps we 20 need to have the next page also, and the next page and 21 the fourth page. Could I have the final page 12206 22 expanded, please. 23 We have heard evidence, Mr Downie, that this was 24 a letter written by Mr McCourt, Health and Safety 25 Consultant, after he had been consulted by Mr Masterton page 41 1 with a view to giving two companies in the ICL Group 2 health and safety advice. This was a quotation for 3 various services that he could provide. 4 Were you aware of that at the time? 5 A. No, not at all. 6 Q. So the apparent decision not to proceed with 7 Mr McCourt's proposal which he spoke about in evidence 8 was not a decision for which you were responsible? 9 A. No. 10 Q. Would you have expected to have been consulted about 11 a decision not to instruct a health and safety 12 consultant to take formal steps on behalf of the 13 companies before it was rejected? 14 A. Having one of these negatives again statements would 15 I have been expected not to instruct ... what I would 16 say is I would not have instructed the appointment or 17 dismissal or whatever of consultants to subsidiary 18 companies and there are quite a number of examples of 19 that. 20 Q. Could I just have the first page of the letter, please. 21 Mr McCourt writes to Mr Marshall with whom he had 22 had a meeting and he begins his letter: 23 "I would like to thank you for the opportunity of 24 providing you with advice on what I believe the current 25 situation facing the company with regards to health and page 42 1 safety ..." and then he sets out various actions and so 2 on. 3 Were you aware at the time of the decision to meet 4 Mr McCourt and to give him the opportunity of providing 5 comments on the current situation with regard to health 6 and safety? 7 A. Definitely not. 8 Q. Thank you. 9 Could I have 12115, please. 10 This appears to be an interoffice memorandum dated, 11 I think, 22nd July 1999 by a Mr Eric North addressed to 12 you with a copy to Mr McColl referring to the HSE visit 13 which took place on 16th July 1999. It concerned an 14 improvement notice on the spray area which was being 15 lifted. 16 Why, if you had no direct dealings in health and 17 safety, did you receive this memorandum, Mr Downie? 18 A. I think that I would have visited Dundee with 19 Miss Brownlie on financial occasions, as we did often, 20 both from the point of view of IT and finance, and we 21 received conducted tours of Mr North's factory -- it was 22 a very small place -- and en passant he would have 23 referred this to me in that respect to say that he had 24 been at that time confronted with an issue in health and 25 safety and we just confirmed that he had resolved it. page 43 1 It's a letter, I suspect, of confirmation. 2 Q. I think you have clarified this was in connection with 3 the premises in Dundee; is that right? 4 A. Yes. 5 Q. Could I have 12496, please. 6 Can we see that this is what is called a "Quarterly 7 report to Chairman and Financial Director of 8 ICL Plastics Limited", dated September 2003 on insurance 9 risk assessment and health and safety administration and 10 it was prepared by Tracey Downie. 11 Do you remember receiving this quarterly report and 12 subsequent pages are 497, 498? 13 A. I don't actually remember the receipt of the report but 14 I do remember these reports were circulated and 15 I recognise the front facia of it. 16 Q. Can we just go back to the front page, please. 17 This suggests that it was a quarterly report; thus 18 one of a series appearing every three months. Is that 19 fair? 20 A. It suggests it was a quarterly report, yes. 21 Q. It was also a report to the Chairman and the Financial 22 Director and that suggests that it was one of a series 23 of reports submitted to you, as well as to the Financial 24 Director; is that right? 25 A. The implication is it would be one of a series of page 44 1 reports, if a series of reports were ever completed. 2 But I think that there would not necessarily have been 3 in existence at that time quarterly reports arriving 4 timelessly. 5 Q. You see, just to conclude on this matter, Mr Downie, my 6 purpose of putting to you the documents that I have just 7 put up (for example, the exchange about the spectacles 8 in 1988, the exchange about product liability in 1988, 9 the memo regarding the Dundee premises in 1999, and this 10 quarterly report in 2003), all of which involved you 11 over a period of some 15 years, I just wonder if you 12 would like to reconsider what you said in paragraph 106 13 of your Inquiry statement which was to the effect: 14 "I was not directly involved in health and safety 15 matters for many years", because it would appear that 16 over that period you received documents which have been 17 recovered on health and safety matters which were 18 addressed directly to you. 19 A. When I say I was not involved in health and safety 20 matters, what I am saying is that any of the technical 21 contacts or administrative or instructional activities 22 had not been engaged in by me for many years and by many 23 years I mean probably the last occasions were when the 24 Health & Safety Executive, Mr Powell, wrote to me in 25 1973 or 74. He had written prior to that and prior to page 45 1 that a Mr Sefton had written to me. I was very involved 2 with these matters then and Mr Sefton wrote in 3 complimentary terms at that time however it was in the 4 middle a 3-day working week in 1972 and I think that was 5 about the last time, '72/'73, maybe '74, that I had 6 contact with Health and Safety or was instrumental in 7 the practical side of health and safety. 8 Reports, yes, did come to me. I think this might be 9 one of or perhaps the only one of its kind because it 10 was a start-up activity and that type of report wasn't 11 routine. There may have been no others, in other words. 12 I'm pretty certain they never came quarterly. They were 13 for insurance purposes; so I think that that would form 14 part very much of an insurance dialogue by both Tracey 15 Downie when she took over insurance and, prior to that, 16 Margaret Brownlie who was responsible for insurance. 17 Q. I return to your Inquiry statement under the heading of 18 "Risk assessments -- ICL Tech Limited", reading from 19 paragraph 107: 20 "I have been shown three risk assessments. 21 "The first risk assessment I have been shown was 22 carried out by Andrew Stott who was the son of the then 23 Managing Director of ICL Tech Limited, Frank Stott. The 24 risk assessment was confined to the part of the building 25 used by ICL Tech Limited. The areas assessed were page 46 1 'buildings, fire, machinery, compressed air machinery 2 and plant hazard list, coating shop hazard list, 3 non-task related hazards, et cetera.' 4 "The assessment of non-task related hazards was 5 presented to a risk assessment meeting on 23rd January 6 1997 attended by Frank Stott, Managing Director; Bill 7 Masterton, Coating Shop Manager; and Andrew Stott." 8 Could I just have that document, please, which is 9 11957. 10 That is the risk assessment meeting minute, 11 Mr Downie; is that right? 12 I do not think there is any suggestion that you were 13 involved in that meeting. 14 A. That would be a minute of the meeting but I haven't seen 15 the document. 16 Q. Could we just go back, please, to the risk assessment 17 itself. Could I have up page 11914, please. 18 This is a page of the assessment prepared by 19 Mr Stott and under the heading of "Health and safety -- 20 electricity and gas", he says -- the first item is: 21 "Propane gas pipes in coating shop are old." 22 As far as the assessment is concerned, there is no 23 other reference to the LPG installation. 24 Were you aware of that comment having been made at 25 the time this assessment was prepared in 1997? page 47 1 A. No, I was not aware of that. 2 Q. Paragraph 109 of your Inquiry statement: 3 "It would appear that over the period 1997 to 2001 4 ICL Tech Limited developed its risk assessment and 5 a tabulated risk assessment evolved, dated October 2001, 6 which appears to have been revised up to July 2003." 7 Could I have up, please, 12253. 8 Does this appear to be a letter sent by Mr McColl to 9 a Miss Annette Leppla of the Health & Safety Executive, 10 dated 15th August 2003, in which he encloses COSHH 11 information risk assessments and usage control and 12 process information? 13 A. Yes, it does. 14 Q. Could you go to page 12261, please. 15 I do not think it is a matter of dispute, Mr Downie, 16 this is one of the pages out of the risk assessment 17 which was sent to the HSE and they had it in their 18 possession at the time of the disaster and it has been 19 produced to the Inquiry. If we look at the first item 20 under the heading "Hazard potential harm", and so on it 21 is: 22 "Propane gas pipes, making an explosion, 2, 6, 23 regular inspection good practice and review." 24 The column headed "F" means frequency potential and 25 2 is possible and the column headed "S" is severity page 48 1 potential and the figure 6 means "death (several)." 2 Were you aware of this document and its contents 3 having been sent to the Health & Safety Executive? 4 A. No, I wasn't aware of that. 5 Q. If we look at the right-hand column, it is similar on 6 other pages, in the heading in the column headed "Date", 7 in fact, various handwritten items have been inserted 8 and the contents are not particularly important but we 9 understand that the handwriting is that of Mr McColl. 10 Does that appear to be the case? 11 A. That is true. I would say so. 12 Q. Could you please keep that page up and go to 11910. 13 This is a copy of a page of a document which was 14 found in the remnants of the mill after the disaster and 15 if we look by reference to the first line, the hazard 16 propane gas pipes, potential harm leakage and explosion 17 26, regular inspection, good practice and review, it 18 would appear to be another copy of the same risk 19 assessment and in addition Mr McColl's handwritten 20 comments in the date column appear to be the same? 21 A. I would say so, yes. 22 Q. We can see on both of these the printed date at the 23 bottom left-hand corner is October 1971. 24 A. October 2001. 25 Q. I beg your pardon. page 49 1 I then return to paragraph 110 of your Inquiry 2 statement: 3 "In June 2002 Bill Masterton, Coating Shop Manager, 4 was instructed to prepare a risk assessment for ICL Tech 5 Limited to be revised by Stewart McColl, Managing 6 Director. Bill Masterton's handwritten draft was 7 recovered in the debris." 8 Could I have 12322, please. 9 I think that is a memorandum from Mr McColl, ICL 10 Tech Limited Plastics (sic) and he is referring to the 11 fact that: 12 "... our insurers require us to carry out a risk 13 assessment by department." 14 Do you see that? 15 A. Yes, I can see that. That's so. 16 Q. Was that something that you received, do you recall, 17 Mr Downie? 18 A. No, Mr McColl received that, I think. 19 Q. Could I have the next page, please. 20 That is just the first of a series of pages. Does 21 that appear to be the handwritten risk assessment that 22 you are referring to? 23 A. I don't know that document at all. I can't relate it to 24 anything. The writing on the right-hand side that is 25 under the heading "Current assessment", I think it says. page 50 1 It's not Mr McColl's. The writing in the middle may or 2 may not be Mr McColl's. I think it may well be 3 Mr McColl's. 4 Q. I think to be fair you have said in your statement, 5 Mr Downie, the major part of the document (that is to 6 say not the bit in the centre) is Mr Masterton's 7 handwriting and then the bit in the centre is likely to 8 be Mr McColl's handwriting. 9 I am not asking you to be absolutely sure about that 10 but that looks reasonable, does it not? 11 A. Well, there's a step underneath it and it says 12 "Mr McColl". 13 Q. Reading on from paragraph 110: 14 "The assessment included gas fuelled plant and 15 equipment and pipework and the risk identified is gas 16 leaks. It states the action required -- regular checks 17 to be set up and servicing on a regular basis. The 18 grading of the frequency and severity was left to 19 Stewart McColl. The risk assessment did not extend 20 beyond the confines of the building but it did include 21 the pipes within the building. 22 "I have seen a letter dated 15th August 2003 by 23 Stewart McColl sending a further revised version of the 24 October 2001 risk assessment to the Health & Safety 25 Executive." page 51 1 That is what we have looked at. 2 "This does include the hazard propane gas pipes but 3 the assessment apparently applied only to the coating 4 shop pipework and did not include the pipework extending 5 into the basement or underground up to the regulator. 6 I understand that the regular inspection referred to was 7 solely in relation to the pipework within the vicinity 8 of the oven pilots and controls within the building." 9 Why do you understand that, Mr Downie? 10 A. Why do I understand that? 11 Q. Yes. Why is that your understanding? 12 A. Through all the previous documents that I have seen in 13 the productions after 2004 it seems likely that is the 14 case. 15 Q. Was that your understanding at the time; that is to say, 16 in about 2003. 17 A. Could I just recap on the bit that you're referring to? 18 Q. Yes, it is paragraph 111 in your statement. 19 Perhaps if I could have up again page 12253 and page 20 12261. 21 That is Mr McColl's letter to the Health & Safety 22 Executive and it's the page in the risk assessment which 23 refers to propane gas pipes. 24 A. Yes, I see that. 25 Q. Could we just have 12261 expanded, please. page 52 1 A. I see that, yes. 2 Q. You see, there is reference in the first line to propane 3 gas pipes and existing measures, regular inspection and 4 new actions, good practice and review. 5 Can we agree there is no suggestion that the propane 6 gas pipes being referred to were solely in relation to 7 the pipework within the vicinity of the oven, pilots and 8 the controls within the building but, if I understand 9 you correctly, that would be to be expected because this 10 is an ICL Tech assessment and their activities occurred 11 only within the building. Is that fair? 12 A. No, because paragraph 111 starts: 13 "I have seen a letter dated 15th August 2003 by 14 Stewart McColl sending further revised versions ..." 15 et cetera, et cetera, and I have deduced from that in my 16 reply, after having been presented with a letter, that 17 that, in fact, something -- and all the other 18 correspondence -- something that might have been done 19 was not done. 20 Q. Perhaps we will just leave that, Mr Downie. 21 Paragraph 112: 22 "I would observe that the assessments carried out on 23 behalf of ICL Tech Limited related to known 24 occupational risks which would occupy the day-to-day 25 mind of persons working in this type of environment page 53 1 given that they dominate work-related injuries and ill 2 health. The obvious examples identified within the 3 assessment are exposure to chemicals and vapour 4 (COSHH-related matters) cuts and crushing from power 5 equipment and tools, slips, trips and falls, et cetera. 6 The gas inside the factory was identified as a hazard 7 but the possibility of a leak of gas from the 8 exterior/underground pipe was not." 9 Next heading: 10 "Risk assessments -- ICL Plastics Limited. 11 "No documentation including risk assessments have 12 been recovered or found for ICL Plastics Limited. 13 "Although Stewart McColl was responsible for the 14 risk assessments for ICL Plastics Limited in respect of 15 the premises. Margaret Brownlie would have been 16 responsible for and carried out risk assessments in 17 respect of ICL Plastics Limited's office. I recollect 18 that her risk assessments were focussed on solely 19 office-based activities. 20 "As ICL Tech Limited were the operators within the 21 premises owned by ICL Plastics Limited, it seemed 22 appropriate that the making of the risk assessment 23 regarding the premises was left to the operating 24 company, particularly given the common directorship. 25 "Operationally, risk assessments were carried out by page 54 1 Mr Foard for Stockline and Mr McColl for the other 2 companies. Mr Foard provided certain maintenance 3 documents to the HSE/Police during the investigation. 4 Risk assessment was a devolved issue to the subsidiary 5 companies and would not be discussed by the ICL Plastics 6 Board. 7 "A practical example of risk assessments taking 8 place in ICL Plastics office is that I was told to take 9 everything too heavy out of the top drawer of the filing 10 cabinets to make sure they did not fall over and injure 11 people by Margaret Brownlie. 12 "Mr McColl wanted to push the companies' standards 13 higher. He was a member of the British Safety Council. 14 "I have been shown a risk assessment sent by 15 Margaret Brownlie to Marsh Limited under cover of 16 a letter dated 28th June 2002. I have not seen this 17 assessment before but I understand the risk assessment 18 required to be sent to Marsh who are the brokers who 19 arrange the company's insurance." 20 Could I have up, please, 13319. 21 Can you see, Mr Downie, that this was a letter by 22 Miss Brownlie to Marsh Limited on 20th May 2002 and 23 towards the bottom of the letter we see: 24 "Risk assessments. 25 "Risk assessments for ICL Tech Limited are page 55 1 enclosed." 2 A. Can I have that blown up? 3 Q. Yes, of course. 4 Could you expand the bottom part of the letter, 5 please? It is under the -- 6 A. Yes, I see that. 7 Q. -- it is under the code 02EL5 which I think relates to 8 an earlier letter that does not concern me, but that is 9 what she said. 10 A. Yes. 11 Q. Could I have the next page, please? 12 This is the front page of the ICL Tech Limited 13 health and safety programme risk assessment; is that 14 right? 15 A. Yes. 16 Q. Just go back to 319, please. 17 I think just as a matter of interest we should note 18 this letter was written by ICL Plastics Limited again, 19 Mr Downie, was it not? 20 A. Yes, that's an ICL header. 21 Q. Could I then, please, have page 13336. 22 Does this appear to have been the risk assessment 23 which was sent or a page from the risk assessment which 24 was sent by Miss Brownlie to Marsh which is referred to 25 in the letter we have just looked at? page 56 1 A. Yes, it could be. 2 Q. The system of what is said on this page is similar to 3 the previous one by Mr McColl and we can see that at the 4 top left there is a frequency potential with numbered 5 levels, on the right-hand side severity potential with 6 numbered levels. 7 Underneath, we have the first item is gas 8 appliances, risk assessment gas leaks; F, which is 9 frequency, is 2; severity is 2, which is minor injury or 10 injuries; and there is no current assessment and no 11 action required. 12 Could I have that page retained, please, and could 13 I have up, again, 12261. 14 This was Mr McColl's previous or Mr Masterton's 15 revised by Mr McColl's previous risk assessment, 16 Mr Downie, and the hazard there we looked at a moment 17 ago and this was the one sent to the Health & Safety 18 Executive has propane gas pipes, leakage and explosion, 19 potential harm, frequency 2 but severity 6, which is 20 death (several). 21 A. Yes. 22 Q. Can you explain why in the risk assessment sent to the 23 Health & Safety Executive the assessment of the severity 24 potential of leakage and explosion from gas pipes was 25 death possibly several -- if I could then have back the page 57 1 other document -- but in the risk assessment sent to the 2 insurance company which refers to gas leaks the severity 3 potential is only 2, which is minor injury or injuries? 4 A. Bearing in mind that I haven't seen these documents, 5 there is one significant difference and that is that the 6 first document, if I could look at it, clearly says 7 propane gas pipes and if I go back to the second 8 document, I can see it says gas appliances and I would 9 assume these appliances to be gas appliances from 10 natural gas which would comprise, possibly, central 11 heating boilers installed by CORGI. 12 Q. May I suggest, Mr Downie, you might want to think about 13 that again because if you go to the third entry on 13336 14 (that is to say, the assessment sent to the insurance 15 company) the process is again gas appliances but the 16 risk assessment in that case is damage to external 17 propane tank. So the assessment must have taken into 18 account the propane installation to some extent, must it 19 not? 20 A. Yes. An appliance in the case of the propane equipment 21 would probably be the gas burners or could, in fact, 22 have included the tank. 23 Q. It refers to the external propane tank, does it not? 24 A. Yes indeed. Yes, yes, I missed that. 25 Q. And potential damage to the external propane tank is page 58 1 rated at a severity of only 2: again, major injury or 2 injuries. 3 Of course we know that the Health & Safety Executive 4 was very much focusing on causes of concern relating to 5 the tank, in particular potential damage. 6 Again, we can go back to 12261, please. 7 That is talking about propane gas pipes, leakage and 8 explosion and the severity rating is 6. 9 A. Yes. That's pipes. 10 Q. You see, it might be suggested, Mr Downie, that for the 11 benefit of the Health & Safety Executive, who of course 12 are concerned with safety in the public interest, 13 recognition of a high severity potential was 14 a reasonable thing to do but when presenting the 15 equivalent assessment to the insurance company, who of 16 course might charge a higher premium if there was 17 a higher severity potential, the severity level was 18 reduced to 2, which in the case of the other form is 19 minor injury or injuries. 20 Now, I am happy to confirm to you, Mr Downie, I am 21 not aware of any documentary evidence which can answer 22 that query one way and another but do you have an 23 explanation as to why two risk assessments apparently 24 addressing the same potential hazard have come to 25 a significantly different assessment of the severity page 59 1 potential? 2 A. If I were doing the rating, I have no idea how I'd 3 approach that with regard to these three separate or 4 these three separate items on two documents because the 5 first one is propane pipes and is quite correctly rated 6 highly. The second one is gas appliances which might be 7 natural gas and might be central heating boilers 8 installed by CORGI and the third one is quite clearly 9 gas appliances again and it's a tank, barrier erected. 10 Now, if the barrier that was erected had been 11 specified by the health and safety people and if, as 12 I understand is the case, no vehicles were allowed into 13 the loading yard and unloading had been agreed with the 14 Health and Safety as having to take place outside the 15 curtilage of the yard, then the risk is significantly 16 reduced. 17 Q. Is it fair to say, Mr Downie, that you cannot yourself 18 provide any explanation directly for why that difference 19 appears in the two documents that we were just looking 20 at? 21 A. I can't do so. 22 Q. Thank you very much. 23 Returning to paragraph 120 of your Inquiry 24 statement: 25 "I never saw any of the risk assessments completed page 60 1 by Margaret Brownlie. However, in ICL people would not 2 fail to observe their duty. I presumed that she would 3 be responsible for risk assessments in light of the 4 filing cabinet issue. 5 "The culture/attitude towards health and safety 6 within the Group was almost authoritarian. My 7 recollection is, for example, that Mr McColl was 8 scrupulous in all health and safety matters. 9 "I am aware that there has been a history of change 10 throughout the industry relating to health and safety 11 matters. It is necessary to label products and send 12 letters to customers regarding the storage of products 13 throughout the industry. Companies also have to be 14 compliant with COSHH 1974. ICL Tech and Stockline were 15 fully compliant with COSHH and this was not just 16 a cosmetic exercise. 17 "A health and safety culture was developed at an 18 early stage with employees receiving induction training 19 about health and safety and understanding how to comply 20 with the requirements. Employees were briefed with 21 written information by personnel and thereafter the 22 Directors were responsible for their induction and 23 devolved health and safety affairs. Some employees have 24 been near to dismissal for not complying. 25 "I knew that this training was taking place as, for page 61 1 example, following the slips and trips legislation, 2 rubbish was kept off the factory floor, staircases were 3 clear, signs were put up regarding wet stairs, 4 et cetera. All of these procedures manifested 5 themselves to an observer in the building. 6 "I was asked about employees that have raised 7 concerns about health and safety in the building. 8 Following complaints made by two individuals that have 9 since left the company (one is actually on long-term 10 sick) a health and safety specialist was brought in to 11 check the building to see if the claims were valid or 12 otherwise. The specialist concluded that the company 13 had no cause for criticism in respect of the 14 individuals' claims. I understand that this is fully 15 documented in the Health & Safety Executive's file." 16 I take it, Mr Downie, that the reference there is 17 not to any concerns which were express about LPG but 18 were about quite separate matters? 19 A. Totally separate matters, yes. 20 Q. "I was asked about allegations that circumstances 21 changed to meet Health and Safety requirements prior to 22 inspections. Health and Safety saw what we did, 23 day-to-day. They did their work. I have no direct 24 knowledge on this point." 25 Could I have up, please, 12718 and 9. If you could page 62 1 just expand 9, please. 2 "I am shown a document entitled 'Disaster recovery 3 plan'. I have never seen this document before. This is 4 external to the company and would never have been 5 generated by the company. I am sure the ICL logo on 6 paperwork is bigger than this. It looks like a cut and 7 paste job. I think this is an attack on the company by 8 a third party. This does not look like any disaster 9 plan that I have ever seen. I cannot even get into the 10 mind of the person who would have produced this. 11 "Following the tragedy a number of chequebooks were 12 stolen from the site. We were advised by the bank that 13 fraudulent cheques were issued. The documents retrieved 14 from the site were put into skips but these were not 15 secured or closed and, as a result, this could have 16 been added. 17 "As a Chairman I never discussed a disaster recovery 18 plan. There were no disaster recovery plans although 19 Marsh, our insurance brokers, attempted to market these 20 from time to time. I believe that there may have been 21 one in the Marsh files but this is a circular which 22 relates to the millennium bug. 23 "I believe that document is a cynical response and 24 its content is absurd. In any event it is quite clear 25 from events subsequent to the tragedy that this document page 63 1 is a nonsense -- it has not been followed, quite to the 2 contrary." 3 Mr Downie, obviously the Inquiry can read what you 4 say in these paragraphs and I certainly do not want to 5 ask any comments, at least at the moment, about the 6 contents of this document, but as I understand it you 7 are putting forward evidence that this could not have 8 been created by ICL Plastics Limited or perhaps by one 9 of the other ICL Group companies; is that right? 10 A. I see on the document reference at the top D1. I have 11 already explained previously to you in an earlier 12 document that there was a habit in Group, specifically 13 Margaret Brownlie, to use a draft reference system. The 14 last one we looked at was D3. This one is a D1. That 15 means there is no subsequent amendment to that and for 16 you look at the language it's couched in, it does not 17 appear to be the language of anybody who has produced it 18 other than quickly banging it out, it is not 19 particularly grammatical. 20 As a D1 it would go nowhere until the D reference 21 was removed from it. That was the habit of all of our 22 documents. So the drafts would be worked on and when 23 they became delivery of final documents, the D reference 24 would disappear and both a date, reference and signature 25 would be appended to a document that was sent to page 64 1 somebody. 2 Q. So given that this was a document found within the 3 remains of the mill, Mr Downie, is it conceivable that 4 it was a first draft, albeit in a very crude form, and 5 not something that would have been given any weight 6 without perhaps significant further work on it? Is that 7 possible? 8 A. No. It's a spoof. It's quite clearly a spoof. Perhaps 9 if I could say that I have, since I saw that document 10 and read the comments, asked Tracey Downie to explain 11 what the origin of the document might be and it does 12 appear that it was part of a file that was with the 13 insurance documents, never sent to the insurance 14 companies but relating to the Y2K millennium bug. 15 I only realised after seeing this spoof that we had 16 been thinking heavily before the millennium in 2000 17 about the business recovery insurance issues. That is 18 Margaret had been in contact with, I think, the insurers 19 and but -- because we -- I should explain the millennium 20 bug would not affect us because we wrote all our own 21 software, both business and accounting software, and we 22 did so on a system which was not a Microsoft system. We 23 ran it on a relational database which was not affected 24 by, in itself, the date change that would occur in the 25 millennium. I know millions of pounds were spent page 65 1 correcting the millennium bug throughout the country. 2 We did an audit of our own software anyway just to be 3 sure and we found the software clock on our machine 4 would start in 1968 and not at the beginning of the 5 first millennium. 6 We did an audit of each of the subsidiaries to make 7 sure that we would not be exposed to the disaster that 8 might take place, the millennium disaster that might 9 take place, a software audit and we were satisfied and 10 I think probably Margaret Brownlie, although I don't 11 know whether it was ever raised with the insurers again, 12 satisfied them to the effect that we had a disaster 13 recovery plan in respect of their business recovery 14 insurance. 15 Just a final comment on what I consider to be 16 a spoof, both from the point of view of the present 17 situation in 2004 we made substantial efforts to try and 18 survive our catastrophe and will continue to do so and 19 also it has long ago been the case that my son would 20 take over the reins of the company if I were no longer 21 able to do so and that the business would go forward 22 indefinitely into the future. In other words, we were 23 not about to shut the company down and run away with the 24 assets. 25 Q. Could you keep up that page, please, and could I have page 66 1 13421. 2 This, in accordance with Miss Tracey Downie's 3 evidence, is a note of a meeting between her and a Miss 4 Mullen from Marsh, the insurance brokers. 5 Miss Downie has confirmed that at the bottom of that 6 page there is a note of the fact that she confirmed 7 under the heading of "Disaster Recovery Plan": 8 "TD confirmed we have a plan in place and LMM [that 9 is Miss Mullen of the insurers] confirmed the insurers 10 will welcome this", of the brokers. 11 Mr Downie, the only document that I think we are 12 aware of with the title Disaster Recovery Plan, which of 13 course matches the heading on that note of the meeting 14 between Miss Downie and the brokers, is the document on 15 the screen, which is 12719. 16 That document, whatever else it may do, has on it 17 a form of reference in the letters D1 which exists in 18 other undoubtedly genuine ICL Group documents that we 19 have looked at. 20 Are you sure, as you put it, that this is a spoof or 21 is it not possible that however inadequate it may now be 22 viewed to be and even, although it is only a first draft 23 as indicated by the code D1, it is possible that this 24 was a document created by ICL Plastics Limited and was 25 found as such within the remains of the building? page 67 1 A. It was created by a person, I suspect, in ICL Plastics 2 Limited. I could not identify who did that apart from 3 the reference D1. 4 An element of doubt will always surround that and 5 the document is neither signed nor dated and nor I think 6 I can say did our insurers ever receive it as part of 7 a disaster recovery plan. 8 MR MARTIN: Mr Downie, I am happy to leave that matter. 9 My Lord, it is now after 1.00. 10 (1.03 pm) 11 (Luncheon Adjournment) 12 (2.08 pm) 13 MR MARTIN: My Lord. 14 Mr Downie, I wonder if you could return to the final 15 part of your Inquiry statement, please, on page 25, at 16 the bottom of the page, paragraph 131, under the 17 heading: 18 "Post the tragedy. 19 "The tragedy of the events of 11th May 2004 has 20 affected everybody involved, both in the companies and 21 in the local community. One of my immediate concerns 22 was to pay the full cost of the funeral expenses 23 incurred by the bereaved in order to avoid hardship. 24 A trust, the Hopehill Trust, was set up on my 25 initiative. On behalf of the two companies I asked two page 68 1 former directors to become trustees. £2,000 was donated 2 by Mr Ronald Ferguson, one of the shareholders, and 3 ICL Plastics Limited contributed £25,000. The purpose 4 of the Trust was to alleviate the financial burden of 5 funeral expenses. 6 "On 12th May 2004, Proclaim Care were instructed 7 through the companies' insurers to provide 8 rehabilitation, counselling and other services to 9 support the immediate needs of employees, relatives and 10 rescuers. As at 14th May 2004 facilities for accessing 11 Proclaim were in place and a dedicated help-line was set 12 up. The help-line was manned by ICL personnel. 13 I understand that to date at least 26 persons have 14 engaged the services of Proclaim and this has involved 15 rehabilitative therapy, such as physiotherapy, nursing 16 care and assistance with purchase of adaptations 17 necessary to support the needs of injured persons. 18 I understand that Proclaim continue to be involved to 19 this day. 20 "Before business reconstruction could be considered 21 the Directors and I were concerned about the employees' 22 wages. The companies were able to maintain full basic 23 wages through to August 2004. They continue to pay 24 a proportion of basic wages to those currently not 25 working to add to the incapacity benefit they now page 69 1 receive. I would regard these as support payments. In 2 total, since 11th May 2004, payments made by the 3 companies to those employees unable to return to work 4 amounts to just under £700,000. 5 "I understand that the civil claims have been dealt 6 with by solicitors for the companies HBM Sayers who are 7 in the process of negotiating with the various 8 claimants' solicitors and since the accident. 9 "The companies, working together with the families 10 and with Glasgow designer Patrick Moran, created 11 a memorial garden as a permanent tribute to those who 12 lost their lives. The creation of the memorial garden 13 was funded by the companies. I would hope that this, 14 amongst other things, demonstrates how sincerely the 15 companies' directors consider how the tragedy has 16 affected all our employees, many of whom we have known 17 as friends over the years. 18 "There are currently 82 employees on the Group 19 companies' books of whom 19 are still off work. Since 20 the accident, everyone within the workforce, including 21 a number of those who were injured in the blast, have 22 worked heroically to help revive the business. 23 "Finally, I would wish to add that this tragedy has 24 been devastating. It has affected all of us personally. 25 In the immediate aftermath of the explosion, my concern page 70 1 was for all the employees and directors, including my 2 son, Nick, who was buried for about five hours and was 3 also severely injured. I just had to say to myself, 4 'Try not to go to bits and try not to let everyone 5 down'. I have tried to support everybody since the 6 tragedy. I have tried to keep the companies going. 7 I have come out of semi-retirement to do this. 8 "I confirm that the contents of this statement are 9 true." 10 Thank you very much, Mr Downie. Please remain, if 11 you will. There may be further questions. 12 THE CHAIRMAN: Mr Downie, there will be some questions for 13 you on behalf of some of the participants in the Inquiry 14 but before we get to that, could you help me please just 15 to get a better understanding of this site. 16 If we could start with the site as it was when you 17 started up at the mills. It appears, if I have the 18 grasp of this, that the site was shared with was it 19 Milne, the builders? 20 A. Yes. 21 THE CHAIRMAN: There was a third -- 22 A. Gael Paints. 23 THE CHAIRMAN: Gael Paints, that's right. 24 At that time, did the tenement building to the west 25 of the mill buildings still exist? page 71 1 A. It did, yes. 2 THE CHAIRMAN: Were those the only three occupants of the 3 site that we see today? 4 A. The common site which we will go to will have those 5 occupants, with the exception of Milne who went into 6 liquidation many years ago. So it will be the three 7 original sites. 8 THE CHAIRMAN: That site would be bounded -- because the 9 street pattern has changed since then, if my memory 10 serves me. It would be bounded by Maryhill 11 Road -- sorry, by Hopehill Road, Grovepark Street and 12 would it be bounded by North Woodside Road on the east? 13 A. No. The joint proprietors would be bounded by Grovepark 14 Place. 15 THE CHAIRMAN: Yes, I have that. 16 You mentioned at one stage that Sterns had -- did 17 you mention Sterns at one point? 18 A. L Stern Refrigerator Manufacturers. 19 THE CHAIRMAN: Were they on the site at one time? 20 A. Oh yes, when we moved in, they were on the site 21 manufacturing refrigerators and above that was RS 22 McColl's sweetie manufacturing factories. 23 THE CHAIRMAN: Whereabouts on the site, were they? 24 A. I don't know whether you can get the original 25 photographs up but the building was long since page 72 1 demolished, the Stern building was demolished and it now 2 consists of a strip of shops running from Grovepark 3 Place down to North Woodside Road. 4 THE CHAIRMAN: Where Lidl is? 5 A. Where Lidl is, yes. 6 THE CHAIRMAN: Sterns went out of business in the early 7 1970s, I think, did they not? 8 A. That's right, yes. 9 THE CHAIRMAN: I think I've got the hang of that. 10 Where was the water source for the mill? 11 A. I only know this from industrial archaeology before the 12 flats were even built. The water source for the mill 13 was a mill pond at the corner of Hopehill Road and 14 Grovepark Street, in a depression there. 15 THE CHAIRMAN: There is no obvious water course around this 16 area where you would expect a mill to be sited. 17 A. The mill pond drew water into the factories, presumably 18 through some kind of evaporator. 19 THE CHAIRMAN: What happened to the mill pond then? 20 A. They built flats over it. 21 THE CHAIRMAN: It was drained and filled in? 22 A. I would assume that. 23 THE CHAIRMAN: Can we move on to the questions relating to 24 the pipe that failed. 25 Does it really come to this: throughout all the page 73 1 history of this case, whatever the reason was, that the 2 one sure and certain thing that emerges is that no-one 3 in the ICL Group was ever alerted to the possible 4 deterioration of the pipe underground? 5 A. I think a letter that we discussed in 1988 from the 6 Health and Safety Authority discussed that. That was 7 the alert both before that, I think, Calor had made some 8 technical brochure references to it but they were not 9 official references to our particular installation and 10 after that, after 1988, there were no health and safety 11 references to it again until 2004. 12 THE CHAIRMAN: So when the level of the yard was raised, so 13 far as the records show, it appears not to have occurred 14 to anyone that the burial of the pipe could have 15 implications for the integrity of the pipe itself? Is 16 that fair? 17 A. That would appear to be so. 18 THE CHAIRMAN: Then when the steel floor was laid by GNJ 19 Reid, it appears not to have occurred to anyone at the 20 time what implications that would have for the creation 21 of an unventilated void. 22 A. I think that would also be true. 23 THE CHAIRMAN: So what we have really are two perfectly 24 rational decisions, one to raise the level of the yard 25 and the other to create a mezzanine with a steel floor. page 74 1 The implications of these were not considered and 2 neither was the potential combination of them. Is that 3 fair? 4 A. I would think that is absolutely so. 5 THE CHAIRMAN: The question then arises about the HSE 6 recommendation 11 which, of course, immediately put the 7 idea of excavation on the agenda, did it not? 8 A. It did, yes. 9 THE CHAIRMAN: Is it your position that you took advice from 10 Calor and Calor made a counter-proposal and that was 11 accepted? 12 A. Mr Stott took advice from Calor and a counter-proposal 13 was accepted, yes. 14 THE CHAIRMAN: Yes. 15 Apart from that exchange between the HSE and 16 Mr Coville, apart from that, there is no documentation 17 at all in this case that would suggest that any other 18 specific consideration was given to the integrity of the 19 underground pipe by anyone in ICL. 20 A. There is no record of that and if when you say ICL, if 21 you mean the holding company -- 22 THE CHAIRMAN: I am just speaking about the whole 23 organisation. 24 A. Okay. There was no consideration by anybody else in the 25 whole Group of that issue. page 75 1 THE CHAIRMAN: On the question of risk assessment, it would 2 appear that there are consultants available in the 3 health and safety industry who are available to advise 4 on specialist health and safety matters. 5 A. Yes, that's so. 6 THE CHAIRMAN: Mr McCourt was an example of that. These 7 consultants are in a position to do risk assessments, 8 are they not, or some of them are? 9 A. I don't know what the extent of their capabilities is 10 and I think there are very many of them to choose from 11 who are very different levels of capability. 12 THE CHAIRMAN: With what is available sources of expert 13 advice, can you explain to us why the decision was taken 14 that the risk assessment that we are concerned with was 15 carried out by an unqualified student? 16 A. The unqualified student was Mr Stott's son and Mr Stott, 17 I think, because of his son's history with the company 18 (he had been in the company, I believe, on and off over 19 the years during his student years) and I think he was 20 well-qualified. He qualified well when he left 21 university in two or more Honours degrees and I think 22 under Mr Stott's direction he might have done very well 23 at that job. 24 THE CHAIRMAN: Just standing back from the problem now with 25 the benefit of hindsight, can you appreciate that it page 76 1 might be thought that it would have been much better to 2 have the assessment carried out by a specialist 3 consultant bearing in mind the highly dangerous nature 4 of the LPG? 5 A. It's very difficult for me to say what was in Mr Stott's 6 mind when Andrew Stott did the risk assessment or later 7 what was in Mr Marshall's mind when he did not accept 8 the proposal to do a risk assessment. I wasn't privy to 9 these things. 10 THE CHAIRMAN: Just drawing the threads together for 11 a moment, is your position this: you personally were not 12 involved in any of the material decisions that have 13 a bearing on this tragedy? 14 A. That is true. 15 THE CHAIRMAN: Do you also say that in respect of 16 ICL Plastics Limited? 17 A. I'm absolutely certain that if Mr McColl had been aware 18 at any time as the key linking person between 19 ICL Plastics and its subsidiaries, the de facto managing 20 director, that knowing Mr McColl he would not have 21 tolerated risk of any kind and he would have gone to any 22 extent to avoid it. I would include in that, if he had 23 felt necessary, taking expert advice. 24 THE CHAIRMAN: Is it your suggestion then that this tragedy 25 is simply one of these disasters for which no individual page 77 1 responsibility can be attributed? 2 A. I heard somewhere said in some health and safety circles 3 or magazines, publications, that you can look for a risk 4 or do a risk assessment and not see a catastrophe 5 standing behind it; in other words, you can do something 6 and not see the risk. 7 THE CHAIRMAN: So what is the answer to my question then? 8 Are you suggesting that this is a disaster for which no 9 individual responsibility can be attributed? 10 A. I would say that from what I've learned from reading 11 Calor's and the Health and Safety and knowing the ICL 12 testing routes that the risk now appears to have been 13 absolutely an avoidable omission and that that omission 14 which should never have occurred led to the tragedy. It 15 is an omission that took place and I think it's an 16 omission certainly at least of two parties but I'm not 17 here to -- I'm not entitled to make comments about any 18 other issues. 19 THE CHAIRMAN: As you know, it is not part of the remit of 20 this Inquiry to find parties to blame but, nevertheless, 21 it is an inevitable part of an examination of the fa