Employee’s death the result of gross negligence

Adherence to industry standards not a mitigating factor when determining appropriate sentence

At trial General Scrap Iron & Metals Ltd. was convicted on one count of “failure to ensure as was reasonably practicable in the health and safety of a worker.” The charge resulted from a workplace accident in which one of General Scrap’s employees, Wlodzimierz Kochanowski, was killed.

On Feb. 22, 2000, Mr. Kochanowski and another worker were storing a pile of scrap aluminum. The main sorting area was filled to capacity and another site was selected.

During the course of their work the workers came in close proximity to some stacked bales of wire. Immediately before the accident, Mr. Kochanowski was positioned two feet from the bales. The co-worker’s attention was momentarily diverted. When he turned around he saw Mr. Kochanowski pinned to the ground by a bale that had fallen from the stack. Mr. Kochanowski died from blunt trauma.

Two months prior to this accident two bales had fallen from a stack that had been rearranged. The person in charge of safety for General Scrap, Mr. Macdonald, was aware of this accident. The issue of the instability of the bales was raised at a safety meeting in December 1999.

A subsequent hearing was held following the conviction to determine sentencing. The Crown sought a fine in the range of $75,000 to $100,000. In support of its position the Crown focused on the:

• size of the operation: two plants with 25 employees;

• fact that economic activity of the company is significant: a profit of $122,316 in 2000 up from a loss in 1999;

• actual harm: a worker died; and

• general deterrence.

Counsel for General Scrap argued that a fine in the range of $15,000 was more appropriate when combined with the $15,000 that General Scrap intended to spend on safety measures. The company had no previous convictions under the Occupational Health and Safety Act and they co-operated with investigators. The bales were piled in accordance with industry standards and the accident was unforeseeable as bales had not fallen before.

Following the accident the area had been fenced off and entry limited to designated personnel. The safety supervisor took courses to upgrade his knowledge. A draft copy of a safety manual was designed to gather safety policy and procedures in one place. The company had earmarked $15,000 for its efforts to improve safety.

In determining the appropriate fine the Court recognized that the paramount consideration in coming to a fit and proper sentence is general deterrence. One of the arguments that was particularly influential to the Court was the argument by the company that the bales were stacked in accordance with “industry standard.” The Court stated that the phrase “industry standard” is self-defining and means that the industry has decided that things will be done in a certain way.

In this case the scrap metal industry has accepted that bales stacked four high will be the norm. However there were no cogent reasons advanced as to why this was the standard. In the Court’s view to rely on an industry standard the adoption of that standard should be tied to some fact of the operation be it safety, efficiency or the limiting factor of the machinery used. In this case there is no explanation to justify the industry standard of stacking bales four high.

The Court also focused on the fact that only a few months before the accident the company was aware of another incident where two stacked bales had fallen from the top of a pile that had been made the night before. The evidence was clear that this event was ignored.

The accident could have been easily avoided. The company had knowledge and the means to prevent the accident. A warning sign would have sufficed. The Court was of the view that General Scrap was grossly negligent. All the warnings were ignored and the injuries were fatal and irreversible. Based on these facts the Court imposed a fine of $100,000.

For more information:

R. v. General Scrap Iron & Metals Ltd., 2001 ABPC 187.

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