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DUE DILIGENCE

Date First Published on OHS Insider: July 6th, 2009
Topics: Due Diligence |

If a workplace injury or other incident occurs and your company is charged with an OHS violation, it can avoid liability by proving that it exercised due diligence. Typically, the company will try to show that it took all reasonable steps to ensure compliance with OHS laws and prevent the incident or violation. The question will then become: What steps would have been reasonable under the circumstances to address the hazard and prevent the incident or violation it caused? In answering that question, one of the key factors the court will consider is how foreseeable the incident or violation was.

When is an incident or violation foreseeable? There’s no easy way to answer this question. The best—and really only—approach is to look at how courts analyzed and decided the issue in actual safety cases and draw lessons you can use to judge what incidents or violations are foreseeable at your own facilities. So we’ve gathered some cases in which foreseeability was an issue and pinpointed some factors that led courts to conclude that a incident or violation was or wasn’t foreseeable. By examining the factors these courts focused on, you can take steps to ensure that your OHS program addresses all foreseeable safety hazards.

FORESEEABILITY FACTORS

As they say, hindsight is 20-20. So it would be unfair to evaluate the foreseeability of a safety incident or violation by considering what we now know about the events at issue. Instead, a court faced with deciding if a safety incident or violation was foreseeable will consider what the company knew (or should have known) at the time the incident or violation occurred. Courts in safety prosecutions considered the following factors when determining if an incident or violation was foreseeable:

What Company Should Have Foreseen
Foreseeability is what lawyers call an objective, not a subjective, standard. In other words, what matters is not only what risks a company actually does foresee but also what risks a reasonable person in the same situation would have foreseen. That is, the court will ask whether the company knew or should have known that something could go wrong, resulting in a safety incident or violation. Thus, the fact that the company didn’t actually foresee the incident or violation doesn’t mean that incident or violation was unforeseeable.

Example: A worker inspected and organized bricks on a conveyor belt before they went into the dehacker machine in an Ontario plant. When the belt jammed, he went into a narrow walkway between the dehacker and a table to clear the jam. He was struck in the back by the moving dehacker head, suffering a broken neck, eight broken ribs and a cracked elbow. The company was charged with a safety violation but the trial court acquitted it. So the prosecution appealed.

The appeals court convicted the company. The trial court had used a subjective standard, concluding that the incident was unforeseeable because the JHSC, management and the workers most familiar with the area didn’t actually foresee that the walkway was hazardous. But the trial court should have used an objective standard and asked what a reasonable employer would have foreseen with regards to the walkway, explained the appeals court. And based on the evidence, including the frequency of use of the walkway, the size of the dehacker head compared to the size of the walkway and the likelihood of serious injury to any worker caught in the head’s path, a reasonable employer would have foreseen that the walkway was hazardous, concluded the appeals court [R. v. Canada Brick Ltd.].

Obviousness of the Hazard
One of the first factors a court will consider in determining foreseeability is the obviousness of the hazard. After all, it’s hard to argue that an incident was unforeseeable when the hazard was staring you right in the face. This argument will be further undercut if the solution to this hazard was also obvious.

Example: During a production line shutdown, a candy factory worker was told to empty the “Accurate Feeder” of peanuts so it could be cleaned. The Feeder consisted of a hopper with an electric auger at the bottom that rotated to feed the peanuts. The worker scooped out as many peanuts as she could. Then, while the machine was still energized, she pushed the remaining peanuts toward the moving auger. Her hand got too close to the auger and the top of her index finger was amputated down to the first joint. The company was charged with letting a worker service a machine with moving parts that were still energized in violation of lockout regulations.

The court convicted the company. The company’s due diligence defence hinged on whether the incident was foreseeable. It claimed that it had no knowledge of the potential danger to workers cleaning the Feeder. But a reasonable person would have foreseen such a danger, the court said. The company was certainly aware that the Feeder contained a moving part—the auger—that could be a danger to a worker. In fact, the company specifically bought the Feeder to move peanuts, coconut and other material throughout the plant’s various production lines by way of the rotating auger, noted the court. So the company should have taken measures to protect workers from this moving part, such as requiring the auger to be de-energized before cleaning [Ontario (Ministry of Labour) v. Hershey Canada Inc.].

Prior Warnings about Possible Problems
Companies can’t bury their proverbial heads in the sand. If the company has been warned about a potential hazard—whether by workers, supervisors, the safety coordinator, an OHS consultant, a government hazard alert or an inspector—and does nothing to address this hazard, it won’t be able to argue with a straight face that the hazard wasn’t foreseeable. Bottom line: A foreseen hazard, by definition, wasn’t unforeseeable.

Example: A Nova Scotia retired engineer went to the site of a construction project near his home to speak to the workers. As he was leaving, he fell through an uncovered stairwell opening and was in a coma for six days. When he emerged from the coma, he was left with lingering serious health problems. The contractor in charge of the site was charged with four safety violations.

The court convicted the contractor on all counts. The contractor had been warned that the stairwell opening was a hazard. A safety consultant it hired had advised it to board over the opening and paint a warning on the board. And at a toolbox meeting, the contractor and workers discussed using cleats to secure the board over the opening. But the cleats were never installed. In fact, several witnesses testified that the board was left loose so that it could be moved aside to pass various pieces of material and equipment through the hole from the first floor to the second. The failure to cleat or otherwise secure the board over the stairwell covering created a risk that the contractor not only should have foreseen but, in fact, did foresee, noted the court [R. v. Tricell Construction Ltd.].

Lack of Similar Incidents in the Past
By definition, an incident is foreseeable if something similar happened before. So if your company has a safety incident and doesn’t take steps to prevent a similar incident from happening again, it’s likely to lose its due diligence argument. By the same token, if a safety incident strikes out of the blue and nothing like it has ever happened before, a court is more likely—although not guaranteed—to rule that the incident wasn’t foreseeable.

Example: A barge-mounted crane being used to carry out pile driving operations as part of the construction of a bridge tipped over. The crane operator jumped onto the barge, breaking his heal and injuring his back. The company was charged with failing to determine the load capacity and maximum load radius of the crane. The Ontario court dismissed the charge, ruling that the company had exercised due diligence. The court concluded that the cause of the incident was the unexpected slipping of a brace—not the overloading of the crane. The crane had never tipped over before nor had a brace ever slipped. Noting the company’s “extensive and excellent health and safety program,” training and worker qualifications, the court concluded that the incident was “unusual and unforeseen” [R. v. Aecon Construction and Material Inc.].

Of course, there’s a first time for everything. So the mere fact that, say, a fall arrest system had never failed before doesn’t automatically mean that its failure was unforeseeable. But the lack of prior failures is one of the factors that courts will consider.

Likelihood of Event’s Occurrence
This factor is related to the one above. If the likelihood of a particular event happening is so slim that not only has the company not experienced it, but also no one in the industry has ever encountered it, a court is unlikely to conclude that the event was foreseeable.

Example: An Alberta company was constructing a pipeline. Workers were engaged in an operation called “crotching”—a method of securing the end of a pipe that’s resting on a cribbing made of timber—using a Caterpillar pipe layer boom. The boom had an adjusting nut used to set the boom brake to respond to the different loads the boom must hold. The nut had a nylon insert that acted as a lock on the bolt. The boom fell and hit a worker, who died instantly. The company was charged with four OHS violations, including failing to properly maintain the equipment.

The court dismissed the charges. The government argued that the adjusting nut on the boom brake had vibrated loose and caused the incident because its nylon insert was worn out and hadn’t been properly maintained. But the court noted that there was no evidence that the company should have foreseen that the adjusting nut would fail in the manner the government suggested. Nor was there evidence that the company was aware of a potential problem with the nylon insert that would cause the adjusting nut to vibrate loose. In fact, the evidence showed the opposite. Witnesses with extensive experience in the pipeline industry, including government witnesses, testified that they’d never seen or heard of an adjusting nut vibrating loose. Thus, the incident wasn’t foreseeable and so the company wasn’t liable for not taking steps to prevent it [R. v. Ledcor].

Degree of Focus on Possibility of Incident or Violation
Ignorance of a hazard doesn’t mean that an incident or violation involving that hazard was unforeseeable. The court will consider the degree of effort the company put into identifying and addressing the hazard. If the company made no effort to focus on a particular job, practice or piece of equipment, it won’t be able to claim that an incident or violation involving that job, practice or equipment was unforeseeable.

Example: A Manitoba worker used a welding machine to join rail pieces. The pieces entered a dark tunnel-like opening, where they were clamped down to be welded. As a piece of rail entered the machine, the worker saw a chalk mark on it, indicating a possible defect. There was no guard to prevent him from sticking his hand or arm into the tunnel or into the clamp area. So the worker reached into the opening to feel for a flaw in the rail. The clamps, which weigh over 120 tonnes, came down and crushed his fingers. After the incident, a supervisor looked into the tunnel and was surprised to see how close the clamps were to the tunnel’s entrance. The company was charged with failing to properly guard the welding machine as required by OHS regulations.

The court convicted the company, rejecting its argument that the hazard posed by the clamp wasn’t foreseeable. The court explained that the issue was whether the hazard was reasonably foreseeable. If so, the inquiry turns to whether the company took reasonable steps to address it. In this case, there was no evidence that the company ever considered the clamp area at all. The court said, “Foreseeability denotes focusing a mind on the area of concern. Unforeseeability cannot assist the defendant here when the clamp area was totally ignored.” The clamps were very heavy and readily accessible by someone sticking a hand into the tunnel. Thus, it was reasonably foreseeable that the clamp area posed a hazard to workers and so the company should have taken steps to guard or otherwise protect workers from access to that area, the court concluded [R. v. Canadian National Railway Company].

Careless or Negligent Actions by Workers
Workers are human and thus make errors or exercise poor judgment. So the company must anticipate that workers will do careless or negligent things, like stick their hands into running machines or tape over safety switches to make operating equipment easier, and take appropriate action to prevent such carelessness or negligence. The company won’t be able to argue that careless or negligent acts by workers were unforeseeable and thus it can’t be held responsible for not preventing them.

Example: A US company was involved in the demolition of a large steel and metal building in Ontario. It hired a Canadian subcontractor to supply workers, some supervision and equipment. But the company had primary control of the project. A company supervisor directed two workers to burn or cut all incidental steel. In doing so, the workers cut a 2,500 pound door from its supports. When another worker removed some steel that was piled in front of the door, it fell on yet another worker and crushed him to death. The company, the supervisor, and one of the workers who cut the door were charged with several violations.

The court convicted the company, supervisor and worker. The steel door should’ve been properly braced once it was cut from its supports. And the piles of steel in front of the door weren’t a proper brace. Even if the door had been properly braced, the company should’ve put up a caution sign or warning tape so workers would clearly understand the door was a potential hazard. It was foreseeable that a worker might remove some of the steel piled in front of the door because it wasn’t obviously a brace. As the court explained, “Careless or negligent acts are reasonably foreseeable. That is a function of human nature. The purpose of safety rules is to take reasonable steps to prevent or reduce negligence before it happens.” A sign or tape in the vicinity of the door and steel pile would undoubtedly have alerted the worker who removed the steel to a danger he may not have initially perceived on his own. Now, if the worker had observed a caution sign or tape and then proceeded to remove the steel anyway, then such conduct would go beyond carelessness or negligence and could constitute wanton or reckless conduct. In those circumstances, such conduct would not be foreseeable, noted the court [R. v. National Wrecking Co.].

Conclusion
As an OHS coordinator, it’s your job to ensure that the company takes all reasonable steps to address not only known safety risks but also those that are foreseeable. Of course, we don’t mean to suggest that you need to dust off a crystal ball and try to predict the future. But you do have a duty to use your experience, expertise and knowledge of the company’s business to identify activities or substances that could pose potential safety problems—and then to make sure the company takes steps to address these potential hazards.

SHOW YOUR LAWYER
Ontario (Ministry of Labour) v. Hershey Canada Inc., [2006] ONCJ 420 (CanLII), Sept. 21, 2006
R. v. Aecon Construction and Material Inc., [2007] O.J. No. 5329, Sept. 13, 2007
R. v. Canada Brick Ltd., [2005] CanLII 24925 (ON S.C.), June 30, 2005
R. v. Canadian National Railway Company, [2003] CanLII 3056 (MB P.C.), June 20, 2003
R. v. Ledcor, [2005] ABPC 169 (CanLII), June 27, 2005
R. v. National Wrecking Co., [2005] O.J. No. 3538, Aug. 9, 2005
R. v. Tricell Construction Ltd., [2008] N.S.J. No. 243, June 11, 2008

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