Process leading to accident had no accepted standard but company exercised due diligence with regular safety meetings and equipment
An Ontario worker’s fatal accident was caused by the worker’s unforeseeable failure to follow established procedure that he had followed in the past, not his employer’s failure to ensure he was knowledgable and had the proper equipment, the Ontario Court of Justice has ruled.
Cobra Float Services is a transporter of heavy construction equipment based in Concord, Ont., having been in business for 30 years. In May 2013, Cobra Float was under contract to deliver a curb making machine to a subdivision being built in Brampton, Ont. The curb machine was loaded onto a flatbed truck and float trailer and transported to the construction site by Cobra Float employee Luis Pinto on his own. However, while Pinto was unloading the machine, it tipped over onto Pinto, pinning him under it. He later died of his injuries.
The Ontario Ministry of Labour launched an investigation into the accident. There were no witnesses, so investigators had to piece together what happened based on the evidence at the site.
The curb machine had an offset wheel that sat between two regularly placed wheels and the trailer used to transport it at a space between the two regular wheels that allowed the trailer to be raised and attached to a truck. However, the trailer didn’t have a ramp across the width of the trailer that could accommodate the offset wheel, just two separate ramps about 30 inches apart to drive the machine off the trailer.
The investigation revealed that curb machines are tricky to offload from a trailer because of the offset wheel in the middle of the machine. Since this wheel can’t travel on one of the trailer’s ramps, it was common practice to lower the machine to its lowest position. However, the curb machine in question had a wood form attached to its body that required it to be elevated higher to clear the ramp. It was also common practice to use a large piece of wood about the size of a railway tie in the gap between the wheels to support the offset wheel during loading and unloading. Cobra Float didn’t provide workers with such a piece of wood but all of them had some. There were pieces of wood on the trailer, but no evidence Pinto had placed on into the gap before the accident -- none were seen between or near the ramps.
Cobra Float indicated that it provided equipment such as chains and binders to secure machinery safely to trailers and pieces of wood to use as ramps in loading and unloading equipment, and drivers were responsible for maintaining the safety equipment and ensuring it was available when they needed it.
The curb machine’s owner’s manual stated that the machine should not be moved when elevated more than 12 inches, but it would have had to have been raised at least 13 inches because of the wood form. The investigators discovered Pinto and other Cobra Float workers had not seen the manual, but the company stated that Pinto was experienced and knew what to do –- he had previously worked for two other float companies for several years and was considered “one of the best” drivers the company had. It reported that he had moved a curb machine 27 times previously, and Cobra Float workers had moved such a machine on 66 other occasions.
During the investigation, measurements were taken that showed the curb machine was 22 inches off the ground, which would have made it more susceptible to tipping. In addition, the elevation controls were set to “auto” rather than “manual,” which would decrease the stability of the machine. A ministry engineer estimated that the offset tire fell into the gap between the two ramps while it was being driven off the trailer, causing it to tip over. The engineer also felt the float trailer used wasn’t adequate for loading and unloading a curb machine.
Cobra Float didn’t formally train Pinto and the approximately 12 other drivers because they all had previous experience or acquired “hands on experience,” but it held safety meetings every three to four months as well as informal discussions among the drivers. The company had a safety and compliance consultant who ensured compliance with the Ministry of Transportation and the Ontario Highway Traffic Act, but didn’t oversee compliance with the Occupational Health and Safety Act.
Cobra Float also had a safety policy that drivers were “supposed to read” and was discussed in the safety meetings.
Based on the results of the investigation, Cobra Float was charged under the Occupational Health and Safety Act with failing as an employer to ensure that proper measures and procedures prescribed by the act and its regulations were followed in the unloading of the curb machine –- including proper training, using a wooden block, and using the correct height and settings on the machine –- resulting in the death of an employee.
Cobra Float argued that it had exercised due diligence and had done all it could do to ensure the safe unloading of the curb machine and it couldn’t anticipate Pinto’s decision not to use all the tools and procedure needed for the process. It also pointed to a conversation Pinto had with another Cobra Float employee a few days before the accident where Pinto said he was buying a new house and had to meet with a mortgage broker the following week. This may have distracted him and caused him to make fatal errors in unloading the curb machine, said the company.
The court noted that even though no one witnessed the accident, there was little doubt that the curb machine fell on Pinto while he was unloading it from the trailer –- the evidence at the scene was conclusive. As a result, the actus reus –- or fact that the accident happened –- was easily proven for the purposes of pressing charges. The main issue to be determined was whether Cobra Float exercised due diligence that eliminated any connection between its safety efforts and the cause of the fatal accident.
The court found that Pinto’s experience and the availability of pieces of wood to help stabilize the curb machine –- as part of the normal practice in which drivers had been instructed –- made it reasonable to expect Pinto would have followed procedure and used a piece of wood as a ramp. Since there was no widely accepted or available ramp system available, the wood block should have been used. However, Pinto appeared to deviate from the standard of practice on the day of the accident since no wood was found in position, said the court.
The court also found that while Pinto wasn’t provided with specific training for unloading curb machines, he had demonstrated his experience and ability and there was no reason for Cobra Float to think he wouldn’t follow proper procedure. This made the accident less foreseeable for the company.
“The controls being set to automatic and the non-use of the wood to establish a ramp to unload this machine would have made Mr. Pinto’s handling of the machine dangerous,” the court said. “It is inexplicable why Mr. Pinto deviated from the accepted practice, and from his own practice on so many previous occasions.”
Since there were no accepted practices or standard training for the curb machine unloading, the court found Cobra Float’s practice of regular safety meetings and informal discussions reasonable measures to ensure the safety of Pinto and other drivers, along with providing wood blocks and other safety equipment to drivers. These measures and relying on Pinto’s experience and skills to perform the task safely satisfied the standard of due diligence for the company and Pinto’s actions causing the accident were unforeseeable. The court dismissed the charges against Cobra Float.
For more information see:
• Ontario (Ministry of Labour) v. Cobra Float Services, 2017 CarswellOnt 17986 (Ont. C.J.).
