Clearscope legal founder, Raphael Brown, explains the legal implications associated with using alternative refrigerants such as propane-based hydrocarbons.

With the HFC phase-down commencing January 1, 2018, there has been a lot of discussions about the legal implications associated with using alternative refrigerants such as propane-based hydrocarbons.

The reduced global warming potential (GWP) of these refri gerants is now well-established, but there is still a lot of clarification required to understand the associated legal and compliance risks.In this article we examine two important legal questions.

1. Is it important to comply with the maximum charge weight provisions in Australian Standard 5149?

In other industries such as construction and road safety, Australian Standards have been explicitly incorporated into various Acts and Regulations. Compliance is therefore mandatory and not up for debate. However in the HVACR sector, AS 5149 (with its maximum charge weight provisions) has not been given the same legal force.

Does this mean that there is less reason to comply with this standard? The answer is NO.

Here are three very good reasons why readers should comply with AS 5149 even though it is not mandatory:

Being able to defend a negligence claim. If an accident occurs, a HVACR operator could be liable for negligence if they fail to take "reasonable care".

A lawyer for an injured party may successfully argue that non-compliance with AS 5149 indicates a failure to take reasonable care, even though AS 5149 is not a mandatory industry standard.

Responding to a work health and safety investigation or prosecution. These investigations can result in fines in the millions of dollars, and even imprisonment.

While obligations vary between states and territories, a common theme is the need to take "reasonable steps" to ensure a safe workplace. Making it company policy to comply with AS 5149 may greatly assist in demonstrating that reasonable steps were taken.

Protecting your insurance cover. HVACR businesses and professionals working with hydrocarbon refrigerants should have insurance cover such as professional indemnity. If something goes wrong, HVACR businesses and professionals will want to know they are covered.

Insurance policies do vary, and it is important to be familiar with the exact policy terms – which may include an obligation along the lines of complying with "industry best practice". In the HVACR context, an insurer may well argue that compliance with AS 5149 is in fact industry best practice.

2. Does increased hydrocarbon flammability mean increased legal risk?

The short answer is: It depends. If a hydrocarbon-based HVACR system catches fire, various questions should be asked:

How intense was the ignition source? Would ignition have occurred if the system was based  on other less flammable refrigerants?Were other flammable substances present – such as oil, which is mixed with virtually all types of refrigerant?

Did other secondary, flammable materials play a part? Such as curtains and drapes in domestic settings, and flammable ducting and cladding in commercial environments?

Were there clearly displayed signs, warning of the presence of flammable refrigerant? (Seemingly an obvious step. But one that does get overlooked, which was tragically the case at the Hotel Rochester in Victoria in 2014, where two workers lost their lives and a full Coronial Inquest followed.)

When hydrocarbon refrigerant is present, the answers to the above questions will be critical in determining exactly what caused or contributed to the fire and who is legally liable.

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