AB Court: Due Diligence Doesn’t Mean Preventing ‘Bizarre’ Incidents

A basic principle of due diligence is that employers must take reasonable steps to prevent foreseeable incidents. What makes an incident foreseeable isn’t what a company actually foresaw but what a reasonable person in those circumstances would have foreseen. In applying this standard, courts have to be careful not to engage in hindsight and conclude that an incident was foreseeable simply because it occurred. After all, it’s unfair to expect companies to foresee any and everything that could go possibly wrong in the workplace. A recent Alberta case is a good illustration of the judicial restraint that courts should apply. Although the case is from Alberta, the court’s principled view on the scope of what’s foreseeable applies in all parts of Canada. THE CASE What Happened: The owner of a sweet well site hired a company to provide a horizontal pressure vessel to measure the well’s service flow rate. The vessel, which was inside a trailer, contained a meter run that malfunctioned and had to be replaced. A supervisor told a worker to remove some—but not all—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 the bolts. When the co-worker left the trailer, the components were still in place. The supervisor returned later and found the worker lying dead in the trailer. The meter run and back valve had been removed. The cause of death: suffocation due to an oxygen-deficient environment. The company was convicted of failing to ensure, as far as reasonably practicable, the worker’s health and safety. It appealed. What the Court Decided: The Alberta Court of Queen’s Bench overturned the conviction. How the Court Justified the Decision: The trial court had concluded that the company should have foreseen the potential hazard of light gas leaking from the vessel, thus depriving the environment in the trailer of oxygen. But for gas to have leaked from the vessel, the worker would have had to disobey the very clear order not to remove the components. And there was no evidence to show that the company could have foreseen that the worker would do so. In fact, the appeals court said the evidence suggested that it was reasonable to expect the worker to obey the supervisor’s orders:

• Although the worker was young, he had been trained on confined spaces and the dangers of various gases at wells;
• The supervisor gave the worker very explicit instructions not to remove the components and repeated those instructions several times. The worker, in turn, repeated those instructions to at least two other individuals so he clearly understood them;
• The worker had always followed his supervisor’s instructions before and there was no reason to believe he wouldn’t do so again;
• The worker had no experience dismantling a vessel like this one and knew professionals were on their way to do the job;
• Dismantling the meter run would have required the worker to lift 375 lbs. onto a box by himself; and
• The worker gained no benefit and had no motive for disobeying the supervisor’s orders.

In short, “although cases of bizarre and unforeseeable acts are exceedingly rare…the unlikely and inexplicable scenario which resulted in [the worker’s] death falls squarely within that category,” concluded the appeals court [R. v. Lonkar Well Testing Ltd., [2009] A.J. No. 604, June 5, 2009]. ANALYSIS The court in Lonkar acknowledged that companies have a duty to foresee that workers may engage in unwise or foolhardy acts in the workplace. So don’t take the court’s decision to mean that companies will never be held liable for incidents that are the result of workers’ disobedience of instructions or safety rules. But the court added that if this duty to guard against foreseeable risk applied to all “truly bizarre and unforeseeable acts,” then companies would essentially be insurers of worker safety and held to a standard of absolute liability. In other words, employers would automatically be liable any time a worker got injured. Bottom line: Companies must anticipate that workers may disobey safety rules and instructions to, say, get work done faster or more easily and must take reasonable steps to ensure their safety despite this disobedience. However, companies don’t have to take steps to prepare for all manner of fantastic and bizarre situations.