Pinch me. I’m dreaming, right?

When Robin did her annual Due Diligence Scorecard sweep last year, I think she found two cases where employers won, three max. To see the 2008 Scorecard, http://www.ohsinsider.com/insider-top-stories/the-insiders-4th-annual-due-diligence-scorecard-2). And it’s been that way for a few years.

But this summer, due diligence has roared back to life. For the third time in the space of a month, an employer has successfully used due diligence to get OHS charges thrown out. Amazing.

Case 1: Ontario

A few weeks ago, I wrote about an Ontario case where a court found due diligence in a fatal incident that the victim, a supervisor, basically brought on himself by meddling in a pipe moving operation. If you missed the blog, see, http://www.ohsinsider.com/do-diligence/due-diligence-is-alive-well-in-ontario

Case 2: Alberta

Robin then found a case involving a worker at an Alberta sweet well site who was found suffocated to death in a trailer. The problem apparently began when the meter on a horizontal pressure vessel used to measure the well’s service flow rate malfunctioned and had to be replaced. The supervisor told the worker to remove some of the bolts from the meter run and back pressure valve and leave the components in place. But the worker disobeyed instructions and removed all of them. 

The Alberta Court of Queen’s Bench overturned the conviction, finding the company had exercised due diligence. The risk of a leaking pipe might be foreseeable, the court said. But the cause of the leak in this case, the worker’s disobedience of the supervisor’s clear order not to remove the bolts, was not foreseeable. 

            > Although he was young, he had been trained on confined spaces and the dangers of various gases at wells;        

          > The supervisor gave him very explicit instructions not to remove the components and repeated them several times.

            > The worker had always followed his supervisor’s instructions before and there was no reason to believe he wouldn’t do so again; and

            > The worker had no experience dismantling a vessel like this one and knew professionals were on their way to do the job.

R. v. Lonkar Well Testing Ltd., [2009] A.J. No. 604, June 5, 2009, see http://www.canlii.org/en/ab/abqb/doc/2009/2009abqb345/2009abqb345.html .

Case 3: Alberta

The third case is also from Alberta. While checking the hydraulic system, a field mechanic for an earth-moving company went underneath the back of the scraper, stood up and got caught in the ejector-slider mechanism. He was hospitalized for two weeks for his injuries.

The court dismissed the charges, ruling that the company had exercised due diligence:

• It had processes in place for safety and training as well as encouragement and enforcement mechanisms;
• It had provided reasonable supervision to the mechanic, who had 15 years’ experience; and
• It was unforeseeable that the mechanic would stand up under the scraper and beneath an obviously dangerous mechanism

R. v. Kidco Construction Ltd., [2009] A.J. No. 743, July 2, 2009, http://www.canlii.org/en/ab/abpc/doc/2009/2009abpc195/2009abpc195.html  

What’s the Common Theme?

Can you tell what all three of these cases had in common—other than the fact that the employer won?

I’ll tell you what. You guys take the weekend to think it over and submit what you think is the common thread unifying all three of these recent due diligence cases. I know you folks are plenty smart enough to see the theme; but I’m hoping to draw you out and get you into the dialog.

I’ll give you the “answer” in Monday’s entry. So put on your thinking caps and have a great and safe August weekend, everyone.