Employer’s extensive safety procedures showed reasonable measures taken
A Saskatchewan company has been exonerated of health and safety charges after a court found its safety system and training were extensive and the circumstances leading to an accident that seriously injured a worker were unforeseeable.
WINROC is a construction materials company that runs a warehousing operation in Regina for drywall and other construction materials. The company has several safety procedures for its workplace, including monthly safety meetings between management and the workplace safety committee, an orientation program for new employees — including safety issues and drug and alcohol screening — and occasional safety meetings at the regional office.
In addition, the Saskatchewan Construction Safety Association performs a full external safety audit every three years and the company performs annual internal audits. An up-to-date safety manual is kept on the counter of the business office for employees to consult.
On Jan. 11, 2016, the lead shipper at WINROC was unloading sheets of exterior-use drywall material from a flatbed semi-trailer with a forklift. The drywall sheets were bundled together with straps and risers were used to separate the bundles from each other on the trailer. The straps were removed from each bundle before the forklift moved them off the trailer.
Another worker, Jesse Seckinger, finished his lunch break and offered to help by removing the risers that were left on the trailer after the bundles of drywall sheets were removed, thus speeding up the process. The lead shipper agreed and Seckinger began moving the risers off the trailer and out of the way after the forklift moved each bundle. He stood some distance away from the forklift but remained in the lead shipper’s sight, as per protocol.
Drywall sheets fell on worker
At one point, the forklift began raising a stack of sheets that snagged other sheets on the trailer. The lead shipper wasn’t aware of the snag and continued operating the forklift, which pulled additional sheets off the trailer. The sheets fell, striking Seckinger in the head. The lead shipper immediately ran to help and pulled the sheets off Seckinger, who was then taken to the hospital.
Seckinger suffered a skull fracture and a severe concussion, and he was in a coma for three days. He couldn’t drive for six months and had lingering neurological effects. When he returned to work, he had to remain on light duties for a long period of time.
Seckinger was wearing regular safety gear for the warehouse at the time of the incident — including protective headgear. He later agreed that he was aware there was a risk of falling objects in the warehouse and he was familiar with forklift procedures, as he had operated one before and had been trained and tested on them.
Following the incident, WINROC implemented new safety procedures, including the identification of “spill zones” and a prohibition of others removing risers while a forklift was lifting drywall bundles. The company’s branch manager investigated the incident but found safety procedures — including checking the load to see that it was even, ensuring no other workers were in the area and the assistant stays within sight of the forklift operator at all times — were followed properly. He found that once the drywall sheets were pulled off the trailer, it became evident that some were attached to other sheets, leading to the incident. However, before the accident, there was no way of observing that they were attached.
The branch manager said that, in 33 years in the business, “he had never encountered another incident such as the one in this case and he felt it was ‘not easy’ to see why the sheets in question had come off unexpectedly.” Seckinger himself later testified that drywall sheets being dragged off a truck by another bundle while being unloaded was an unexpected incident and had never happened before, as far as he knew.
WINROC called the province’s Ministry of Labour Relations and Workplace Safety shortly after the incident and an occupational health and safety officer investigated. Soon after, WINROC was charged with two violations of Saskatchewan’s Occupational Health and Safety Regulations — failing to provide and maintain systems and working environments to ensure the health, safety and welfare of workers; and failing to ensure safe arrangements for the handling and transport of articles that protects worker health and safety — both resulting in serious injury to a worker.
No specific safety failure identified
In R. v. Superior General Partner Inc., 2019 SKPC 40 (Sask. Prov. Ct.), the court noted that when WINROC conducted its own investigation into the accident, it didn’t find a specific failure in the safety of the drywall sheet unloading. The branch manager and workers involved recognized after the fact that the accident was caused by sheets from different stacks becoming attached to each other, but acknowledged that they couldn’t have known this before the attached sheets were dragged off the trailer by the forklift.
Once the cause of the accident was identified, WINROC modified its safety procedures to address those circumstances.
Noting the common sentiment among the experienced workers that the circumstances of the accident hadn’t happened before and the workers hadn’t thought it to be a possibility, the court found that the accident wasn’t foreseeable.
The court also pointed to the fact that the investigating health and safety officer didn’t provide an explanation of why the drywall sheets fell the way they did.
The evidence showed that no one expected additional drywall sheets to be attached to the stack being moved by the forklift or for them to fall on to Seckinger the way in which they did, meaning the accident wasn’t foreseeable, said the court.
The court also found that all indications were that WINROC had extensive safety procedures in place that were communicated regularly to employees through meetings, updates and manuals available for consultation at any time. The safety procedures included forklift unloading procedures and there was no indication of any negligence or failure to follow procedures — Seckinger, the branch manager and the lead shipper were consistent in saying they were aware and well trained on the procedures.
The company’s quick response after the accident demonstrated its commitment to safety — but just because relatively simple changes were made after the accident didn’t mean the risk could have been anticipated to the point where the new precautions would have been conceived before the accident, said the court.
WINROC took reasonable and practicable steps to ensure a safe working environment — as required by health and safety legislation — and known hazards were addressed in its safety training and procedures, said the court.
The two employees involved were well trained and following safety procedures at the time of the accident. The fact that a stack of drywall sheets had additional sheets attached to it created a risk that wasn’t foreseeable at the time and was, therefore, beyond WINROC’s ability to protect its workers, said the court in dismissing the charges.