Fatal incident caused by disobedience: Court

Employer’s conviction overturned because Alberta gas well worker didn’t follow orders

An Alberta worker’s death was not foreseeable because it was the result of the worker not following orders, the Alberta Court of Queen’s Bench has ruled in overturning a gas company’s liability in the accident.

Jonathan Audit, 21, worked for Red Deer, Alta.-based Lonkar Well Testing. In January 2005, Audit was working at a sweet well site near Grande Prairie, Alta. Lonkar was a subcontractor at the site and provided a pressure vessel, contained inside a trailer, to measure the service flow rate of the well. Its workers were directed on the site by the site supervisor, who was an employee of the site owner.

On Jan. 13, 2005, a component of a pressure vessel, provided by Lonkar, malfunctioned and Lonkar determined it would need to be replaced. It made arrangements for representatives of the manufacturer to come to the site and repair it. Before the replacement component could be installed, valves in the pressure vessel had to be shut and the well head closed and capped.

Though the manufacturer’s representatives would take care of the shutdown and replacement process, a Lonkar supervisor decided to prepare for the operation by having Audit and another worker remove one-half of the bolts while he left the site to get the necessary parts. There was no danger of gas leaking as long as any of the bolts were in place and the supervisor told Audit not to do anything else other than removing the specified bolts until he returned.

Gas leak led to suffocation

When the supervisor returned, he found Audit lying on the floor of the trailer. The component had been removed, contrary to his instructions. It appeared as though some sweet gas had leaked from the pressure valve and decreased the amount of oxygen in the trailer. Audit had fallen, hit his head, and apparently suffocated to death.

The Alberta Provincial Court convicted Lonkar of violating the Alberta Occupational Health and Safety Act by failing to live up to its responsibility as an employer and ensure, “as far as it was reasonably practical to do so,” Audit’s health and safety were looked after on the project to which he was assigned.

Employer didn’t take all safety precautions: Trial court

The trial court found even though the replacement project was supposed to be done by the manufacturer, by going through with preparation for the project and removing valves, Lonkar’s supervisor and workers became “engaged in the operation,” during which Audit had a fatal accident. The court also found although the supervisor told Audit not to do any more than remove one-half of the bolts, he didn’t inform him of the specific danger that could result from finishing the job. This, the trial court said, was a failure to take all reasonable steps for Audit’s safety, especially considering he was a relatively young and inexperienced worker left alone in a “potentially dangerous environment.”

Lonkar appealed the decision, arguing it was not the employer in that situation because Audit was killed performing a job he had not been instructed to do. It also said Audit had been given appropriate safety training, a safety handbook and proper instruction at the worksite.

The Alberta Court of Queen’s Bench disagreed with the first part of Lonkar’s appeal, finding it was the employer who was responsible for the replacement project, even if it had hired a subcontractor to do the job. Lonkar was hired by the site owner to look after the pressure valve and was ultimately responsible for fixing the malfunction, the court said, and the supervisor, Audit and another worker began working on it before the subcontractor arrived.

Worker’s failure to follow orders wasn’t foreseeable: Appeal court

The court noted Audit had received training on oxygen deprivation, working in confined spaces and the supervisor told Audit the “professionals” would remove the malfunctioning component and replace it. Lonkar also said it had never known Audit to not follow specific work instructions so further warnings weren’t thought to be necessary.

The court found though Audit was young, he had been well-trained and warned and had been working for Lonkar for two years. He also had no experience in dismantling the component and knew professionals were on the way, so it was not foreseeable he would attempt to do it himself.

“The existence of a due diligence or reasonable care defence requires the fact find to assess whether the employer took reasonable care to detect and address the potential source of danger, not to speculate as to whether a more dire message may have prevented the tragedy,” the court said.

The potential danger the supervisor was aware of, the court said, was the release of gas that would come from a breach in the system’s integrity. However, a breach was not possible from the work Audit had been instructed to do. The circumstances that caused his death were not foreseeable by the supervisor because it could only have happened by Audit disobeying orders, something he had never done before. The court found the supervisor could not anticipate Audit would disobey his orders and create the dangerous situation to which an additional warning or hazard assessment wouldn’t have applied.

“The act which endangered (Audit) was not done in furtherance of productivity in the work it had undertaken for Lonkar at the behest of (the supervisor),” the court said. “It remains a complete mystery as to why Audit would have undertaken the task of dismantling the equipment in the circumstances. Consequently, it is entirely speculative that a more detailed warning would have prevented Audit’s creation of the dangerous situation which resulted in his tragic death.”

The court found Lonkar took reasonable precautions and couldn’t foresee the “unlikely and inexplicable scenario” that led to Audit’s death. It allowed Lonkar’s appeal and overturned the conviction.

For more information see:

R. v. Lonkar Well Testing Limited, 2009 ABQB 345 (Alta. Q.B.).

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