12 KEY LESSONS
Here are 12 practical lessons that safety coordinators can draw from how courts considered the above factors in the 2008 Scorecard cases. Lesson #1: OHS Program Must Be Proactive—Not Reactive A company’s OHS program must be proactive—that is, it must be designed to identify workplace hazards and potential hazards before problems arise and then take steps to protect workers from these hazards. In other words, a company can’t sit back and wait for a safety incident to occur before taking action. Nor can it simply rely on others, such as workers, contractors or inspectors, to identify hazards for it (although it should certainly respond to any hazards brought to its attention by third parties). Example: Two drivers were driving loaded logging trucks towards each other on a single-lane forest road, which had pull-outs to allow a truck to leave the road so another could pass. The drivers were in radio communication. But there was a misunderstanding over where they’d meet. At a curve with limited visibility, the trucks collided head-on, killing one of the drivers. The sawmill company that the drivers worked for was charged with a safety violation. The BC Workers’ Compensation Appeal Tribunal ruled that the company didn’t exercise due diligence. The company didn’t monitor its radio use policy to ensure the policy’s effectiveness nor did it have procedures for when two loaded trucks were driving towards each other. The Tribunal said that the company’s overall approach to health and safety was reactive, rather than proactive. It relied on contractors, drivers and regulatory agencies to identify safety concerns for it. Given the “extreme hazards” involved, it was incumbent on the company to be more proactive in overseeing the radio use policy to ensure that it was clear and effective and being followed correctly, concluded the Tribunal [WCAT-2008-01539]. Lesson #2: Ignorance of the Law Is No Defence As noted above, reasonable mistake of fact is one of the forms of due diligence defence. However, there’s no reasonable mistake of law branch of due diligence. Companies are expected to know the legal requirements that they must obey. Thus, arguing ignorance of the law won’t save a company from liability. Example: A contractor dug an eight-foot-deep excavation at a house. A plumber refused to enter the excavation to install a storm drain. He told the contractor that the excavation was unsafe because it wasn’t properly sloped. The contractor did nothing to address the plumber’s safety concerns. A safety officer saw a worker in the excavation and noted that it violated the requirements for excavations deeper than four feet. He asked the contractor about the options available under the OHS regulations for safe excavating work. The contractor knew that the excavation required “stepping” but was unfamiliar with any other options, such as shoring. The contractor was charged with a safety violation. The BC Workers’ Compensation Tribunal ruled that the company didn’t exercise due diligence. The contractor had an inadequate understanding of the safety requirements for excavations. So there was no way that he could have adequately trained or instructed his worker on those requirements. In addition, the plumber had notified the contractor that the excavation wasn’t safe. But instead of addressing the plumber’s concerns, the contractor did nothing and let his worker enter the excavation. Thus, the contractor recklessly disregarded safety requirements [WCAT-2008-00905]. Lesson #3: The Greater the Risk, the Greater the Duty A company’s duty to protect workers extends even to hazards that pose only “small” risks. But the greater the risk, the greater the company’s duty to take steps to protect workers from that risk. In other words, a company’s OHS duty is proportionate to the level of risk posed by the hazard. Example: Workers for an Internet service provider were erecting a 64-foot-tall tower on a building without a supervisor. Because of problems attaching the tower’s base plate to the designated corner of the building, the workers moved the tower to a different corner. As two workers were positioning the tower, it touched an overhead power line, instantly electrocuting them. The company pleaded guilty to a safety violation. At sentencing, it argued that it deserved a low fine because its conduct was closer to due diligence than to negligence. The Territorial Court of the Northwest Territories found that the company didn’t exercise due diligence and fined it $150,000. The company didn’t have a safety training program or procedures for working near high voltage power lines because such work was a relatively small and incidental part of its business. But this work was also particularly dangerous. And the company not only decided not to supervise workers performing this dangerous work, but also failed to even recognize the risk that such work involved. “A reasonable employer should have recognized the risk and taken steps” to minimize it, said the court, adding, “Things can go wrong and when the consequences of something going wrong can be tragic, as they were here, [the employer’s] duty is even greater” [R. v. SSI Micro Ltd.]. Lesson #4: Safety Procedures ≠ Physical Guards Companies must have safety policies and procedures. But policies and procedures aren’t enough to protect workers. Why? Workers don’t always comply with them. And incidents can still occur even if workers do comply. That’s why many OHS laws also require physical and/or engineering controls, such as machine guards, to protect workers from certain hazards. When the OHS law has such a requirement, the company can’t claim that its safety policies and procedures were an adequate substitute. Example: A worker suffered a serious hand injury while working on a steel mill. The company was charged with failing to ensure that a pinchpoint on the mill was equipped with a guard as required by OHS regulations. The Ontario Court of Appeal ruled that the company didn’t exercise due diligence, rejecting its argument that it had complied with the guarding requirement by setting safety policies and procedures for the mill’s operation. The company’s “workplace procedures and enhancements” were essentially administrative safeguards. And while they did, in fact, enhance safety, they weren’t enough. In fact, the company’s policies and protocols had been followed but didn’t prevent the incident, noted the court. The regulations required the installation of a physical guard on the mill. The purpose of this requirement, explained the court, was to prevent conduct on the part of the worker from resulting in injury and, “in particular, to take individual discretion, judgment and degree of concentration and capability out of the equation” [R. v. Dofasco Inc.]. Lesson #5: Duty to Protect Workers Covers Only Foreseeable Risks Companies have a duty to protect their workers from all reasonably foreseeable hazards. Foreseeability is an objective—not a subjective—standard. In other words, what matters is not what risks a company actually does foresee but what risks a reasonable person in the same situation would have foreseen. So a company can’t be faulted for not taking measures to guard against totally unexpected risks that no reasonable person would have seen coming. Example: A barge-mounted crane being used to construct a bridge tipped over. When the crane operator jumped onto the barge, he broke his heal and injured his back. The company was charged with failing to determine the load capacity and maximum load radius of the crane. The Ontario Court of Justice dismissed that 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.]. Lesson #6: All Safety Procedures Should Be in Writing Errors or distortions of safety procedures can have serious—and often fatal—consequences. Such mistakes are more likely to happen when safety procedures are passed down by word of mouth or are based on “general understandings” in the workplace of safety requirements. In contrast, written safety procedures that spell out exactly what’s required are less likely to be misunderstood. Thus, all safety procedures should be in writing. Example: The city asked the contractor to look into the moisture level of the soil at the project it had completed several months earlier. Construction regulations required contractors to get “locates” from the utility company that identify any underground utilities before excavation work is done. A supervisor and foreman decided not to get new utility locates because the prior locates for the original excavation had shown that there were no underground utilities and it didn’t appear that the site had been disturbed. A worker using a hydraulic shovel to dig test holes cut through energized underground cables. He wasn’t hurt. But the contractor was still charged with violating the construction regulations. The Ontario Court of Justice ruled that the contractor didn’t exercise due diligence. The contractor had a “general” policy requiring locates before digging and supervisors and workers had a “general” understanding of that requirement. But general policies and understandings aren’t enough, said the court. The contractor needed specific, written procedures reinforcing the requirement to always get locates, the court explained [Ontario (MOL) v. Taggart Construction Ltd.]. Lesson #7: Workers Need Proper Training and Supervision Even well-written and specific safety procedures won’t head off incidents if they’re misunderstood or disobeyed. So handing workers a safety manual isn’t enough. Workers also need to be properly trained and instructed on safety procedures. And when workers have neither written procedures nor proper training, it’s a recipe for trouble. In addition, workers need to be properly supervised to ensure that they understand and apply their training. Example #1: Workers for a road paving company were assigned to do “centerline pinning” on a stretch of highway. Two workers used a tape measure to take measurements, with one of the workers standing in the middle of the road and the other standing near the right hand edge. Both workers were wearing high visibility vests and hardhats. But there weren’t any signs warning drivers that workers were on the road or any means of traffic control, such as a flagger. After a government safety official observed the workers, the company was charged with a safety violation. The BC Workers’ Compensation Appeal Tribunal ruled that the company didn’t exercise due diligence. The company didn’t have a written safe work procedure for centerline pinning work; it simply relied on what it considered industry practice for such work. And when the safety officer asked the workers about traffic control, they didn’t even know that such control was required. In short, the company failed to properly train and supervise the workers on traffic control matters [WCAT-2008-00261]. Example #2: Two supervisors gave a mine worker conflicting instructions on how to repair a machine called a cactus clam. The worker tried to comply with the instructions given by one of the supervisors. He borrowed a forklift from another worker to flip over the machinery so he could access the damaged part. The worker, who hadn’t been trained on operating a forklift, got into an accident and broke his leg. The company was charged with several safety violations. The Ontario Court of Justice ruled that the company didn’t exercise due diligence. The injured worker tried to follow the supervisors’ instructions as best he could. But he had no direct supervision while he was repairing the damaged machine. And a reasonable person would have foreseen that the information, instruction and supervision provided were insufficient in light of the task and its associated hazards, concluded the court [R. v. Cementation Canada Inc.]. Lesson #8: General Safety Training Isn’t Enough Lesson #8 is a corollary to Lesson #7. All workers must get the training they need to do their jobs safely. Such training must address not only general safety but also safety issues specific to the hazards in the workplace. Example #1: A boom truck was unloading an 11,250 lb. container onto a barge. The container fell into the harbour, damaging the boom’s winch mechanism and pulling the truck over onto its side. When the truck overturned, it hit another container located on the barge. A worker sitting next to that container was crushed to death. The company was charged with three safety violations. The NL Supreme Court ruled that the company didn’t exercise due diligence. A boom truck rolling over when lifting a heavy load is a known and foreseeable hazard. And although workers were generally warned to stay away from unloading boom trucks, there was no evidence that workers received any training as to the specific hazards posed by boom trucks. The court concluded that the company had failed to provide adequate instruction or supervision with respect to the hazards posed by boom trucks [R. v. Miller Shipping Ltd.]. Example #2: A horizontal pressure vessel at a sweet mine site was inside a trailer. It had a broken meter run that had to be replaced. A supervisor told a worker to remove some of the bolts from the meter run and the back pressure valve and to leave the components in place. The worker and a co-worker removed some bolts in the trailer. When the co-worker left, the components were still in place. The supervisor later returned and found the worker lying dead in the trailer. The meter run and back valve had been removed. The worker died from suffocation due to an oxygen-deficient environment. The company was charged with several safety violations. The Alberta Provincial Court ruled that the company didn’t exercise due diligence. The supervisor could and should have foreseen the danger posed by dismantling the pressure vessel—particularly that if the meter run was removed, dangerous gases could escape into the confined space of the trailer. But the supervisor didn’t instruct the worker on the specific hazards involved. The worker was 21 years old and had only been with the company for a short time. Thus, the court concluded that it wasn’t reasonable for the supervisor to leave the worker in this potentially dangerous situation without explaining the specific risks involved [R. v. Lonkar Well Testing Ltd.]. Lesson #9: Supervisors Can’t Delegate Safety Duty to Workers Employers aren’t the only ones that have safety duties under OHS law; supervisors also have safety duties. And supervisors can’t delegate those duties to co-workers or “passively rely” on their experience to do the work safely. In short, supervisors must actively supervise. Example: A crew was moving railroad cars by using a train’s engine to push the cars from behind. The engineer driving the train couldn’t see in front of him. So the conductor and brakeman rode ahead in a truck to stop traffic at crossings before the train got there. When the train was five car lengths from a crossing, a truck started to cross the tracks and was hit by the train. The driver was killed. When the collision occurred, the conductor was working on paperwork and not paying attention to the train’s location or the crossing. The conductor, who was a supervisor for safety purposes, was charged with a safety violation. The Court of Queen’s Bench of Alberta ruled that the conductor didn’t exercise due diligence. The conductor argued that it was reasonable for her to rely on the brakeman’s extensive experience to ensure they were at the crossing in time to stop traffic. But the court said that the conductor’s “passive reliance” on the brakeman’s experience was unjustifiable and didn’t “support a due diligence defence.” She was working on paperwork and not participating at all in the task at hand. From the moment that she lost sight of the train, she unacceptably turned matters over completely to her brakeman. Yet it was ultimately her responsibility to ensure that her crew arrived at the next crossing in time to provide manual protection, noted the court [R. v. Hopkins]. Lesson #10: Company Can’t Contract out of Safety Duties The OHS laws impose specific duties on employers. And employers generally can’t get around fulfilling those duties simply by assigning or delegating them to another company through a contract. Example: Safety officers conducting routine inspections of a workplace determined that a forklift extension used to lift marble and granite slabs wasn’t made according to an acceptable design or standard. The officers ordered the company to stop using the extension until it was certified according to an approved standard and to put a stop-use placard on the forklift boom. The company failed to comply with this order. A worker was injured while preparing a stone to be lifted by the forklift extension. The company was charged with a safety violation. The BC Workers’ Compensation Appeal Tribunal ruled that the company didn’t exercise due diligence. The company claimed that it wasn’t liable because, at the time of the incident, another company was responsible for the forklift and extension through a contract. So instead of taking the steps necessary to ensure the safe use of this equipment, the company deliberately decided to avoid its safety duties by arranging for another company to take over the forklift’s operation and maintenance. But a company can’t evade its safety obligations by simply stating in a contract that those obligations are shifted to another company, said the Tribunal [WCAT-2008-01709]. Lesson #11: Safety Duties Extend Beyond Just Workers Up to now, the safety duty we’ve focused on is an employer’s duty to ensure the health and safety of workers. But that duty goes beyond workers. Employers also have to ensure the health and safety of anyone at their workplace, such as contractors and visitors. And courts take the duty to protect a visitor just as seriously as they do the duty to protect a worker. Example: A retired engineer spoke to workers at a construction project near his home. He was at the site for about two hours. When the engineer went to leave, the contractor suggested that he use the emergency stairwell. But the engineer fell through the uncovered stairwell opening. He was in a coma for six days and later awoke with serious medical problems. The contractor was charged with four safety violations. The NS Provincial Court ruled that the contractor didn’t exercise due diligence. Even though the engineer wasn’t a worker, the contractor had a duty to protect him while he was at the worksite, explained the court. But the contractor didn’t take adequate precautions to ensure the engineer’s safety. For example, the panel covering the stairwell opening wasn’t secured in place; it was lying loose. The court noted that four days before the incident, an inspector had ordered the contractor to adequately secure the panel. Yet the contractor failed to do so [R. v. Tricell Construction Ltd.]. Lesson #12: It Is Possible to Prove Due Diligence Each year when we run the Scorecard, it seems like fewer and fewer companies successfully argue due diligence. So you may start to think that due diligence is a myth, a story told to safety coordinators to help them sleep through the night. Yes, proving due diligence is challenging. But it is possible. Example: During work on a water main project, a company had to pull a pipe around a corner onto a side street. The supervisor and foreman told a worker to stand on the northeast corner during the “pull.” While walking north in the westbound lane of the road, the worker was struck from behind by the pipe and suffered a broken leg. The company, supervisor and foreman were charged with failing to ensure that material was moved in a way that didn’t endanger a worker. The Ontario Court of Justice dismissed the charges, ruling that the company, supervisor and foreman had all exercised due diligence. In terms of its general safety program, the court found that the company “took considerable steps on an ongoing, daily basis to ensure and establish and maintain a safe workplace” for its workers on all projects. In addition, the supervisor and foreman were both experienced workers. The court noted that the foreman in particular had a reputation for “being very safety conscious.” The court also found that the pull procedures used during this incident were reasonable. It noted that the supervisor and foreman had:
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