Modest fine after worker’s death significant for family farm

Lack of barrier at manure pit led to worker's death but farmer became more safety-oriented after accident

A Nova Scotia farmer’s fine for health and safety violations leading to the drowning of a hired hand in a manure pit has been limited to $25,000 because of the farmer’s vulnerability as a small operation, the Nova Scotia Provincial Court has ruled.

Mark Sutherland, 38, owned and operated a family dairy farm. On Aug. 19, 2006, one of Sutherland’s workers, 19 year-old Gary Boake, showed up for work after partying the night before. He had been drinking and had not slept, so he was not in a good condition to work, particularly because part of his job was to operate machinery.

Boake was supposed to remove manure to the farm’s manure pit with special equipment that day. The manure pit’s normal barrier blocking it off had been damaged and removed while a new one was ordered. However, the lack of a barrier and Boake’s condition resulted in the worker falling into the pit, where he drowned. Because the barrier was absent from the pit, Sutherland pleaded guilty to failing to take every precaution reasonable to ensure the health and safety of employees, as required by Nova Scotia’s Occupational Health and Safety Act.

The court found Sutherland was negligent by not ensuring there was a temporary barrier in front of the manure pit, but it recognized he had been conscientious about safety issues in the past and made significant changes after the accident, including a safer way to dispose of manure that Sutherland designed himself.

The court also noted Sutherland was “an individual not a large corporation” and, though the safety violation resulted in a fatality, a high fine often associated with workplace fatalities in this case would not reflect the circumstances.

Sutherland was ordered to pay a $25,000 fine, $15,000 of which would go to the Canadian Farmers Disability Registry. He was also ordered to perform 160 hours of community service related to farm safety.

“That is a substantial contribution directly by Mr. Sutherland to farm safety in light of his other responsibilities with respect to his dairy business,” the court said. See R. v. Sutherland, 2009 CarswellNS 251 (N.S. Prov. Ct.).

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