Supervisor, employer didn’t provide safety training or follow OHS rules
A British Columbia man has been fined $25,000 with two years’ probation for illegally serving as a diving supervisor and not following occupational health and safety requirements leading to the death of a SCUBA diver.
Andrew Brown, 26, was an occupational SCUBA diver employed as a red sea urchin harvester near Prince Rupert, BC. He worked on a three-person crew that included another sea urchin harvester and the master of the boat, Joseph Blackburn. The boat was owned by a company that was in turn owned by another individual.
Blackburn was not qualified in SCUBA diving and did not have the required training or certifications of a diving supervisor, nor did he have first aid or oxygen therapy training as required by the Occupational Health and Safety Regulation. However, when the boat’s owner – who was certified - wasn’t onboard, he acted as the diving supervisor.
The boat’s owner was present for Brown’s first day of employment and reviewed procedures on the boat with him, telling him that he had to be close enough to see the other diver in the water – although he didn’t tell him that the Regulation required him to maintain constant physical or visual contact with the other diver because he misunderstood that requirement. After that first day, the owner delegated all supervision and training to Blackburn.
HR has a role in developing and delivering health and safety training, says a consultant.
No qualified diving supervisor
On Oct. 16, 2018, the three-man crew was harvesting sea urchins in shallow water at the edge of a kelp bed. Brown and the other diver dove separately without a lifeline or tether and they couldn’t see each other. Blackburn positioned the boat between the divers, as he believed that they only each needed line of sight to him as the middleman, based on the owner’s instructions.
Before they proceeded, they discussed the harvesting plan but not a safety plan, as required by the OHS Regulation.
After more than an hour, the other diver surfaced and Blackburn picked him up. They looked for Brown’s bubbles, but they were unable to locate him. The other diver went back in and saw Brown upside down with his legs and gear tangled in the kelp one metre below the surface. Neither diver had a knife on him, so the other diver returned to the boat to get one. The other diver cut Brown out of the kelp and unhooked his equipment, but when they got back to the boat, Brown was unresponsive. They tried CPR but were unable to resuscitate him.
The Coast Guard arrived and also performed CPR before paramedics arrived by helicopter and pronounced Brown dead. The RCMP recovered Brown’s SCUBA equipment, which was missing an inflatable buoyancy control device as required by the OHS regulation. According to Blackburn, he had told Brown to carry a knife, but he saw Brown’s knife on the deck that day.
Ontario OHSA requires employers to ensure workers and supervisors complete basic occupational health and safety training.
Numerous safety violations
The RCMP obtained a search warrant for the boat and discovered numerous safety and equipment deficiencies, including only two lifejackets, an expired life raft and safety flares, an expired emergency beacon batter, and no records of drills or a chart.
Blackburn was significantly affected by the tragedy and claimed he had post-traumatic stress disorder. He became unemployed and his personal relationships and finances were negatively affected, collecting a small retirement pension while being $100,000 in debt and suffering from physical and mental health challenges. He accepted his responsibility in Brown’s death, but said that the OHS Regulation doesn’t effectively reflect the reality of diving work.
Blackburn was charged with and pleaded guilty to failing to ensure the health and safety of workers under his direct supervision, contrary to the BC Workers Compensation Act, and failing to ensure the divers maintained constant physical or visual contact with each other, contrary to the OHS Regulation.
The BC Provincial Court found that Blackburn, as a supervisor, and the owner, as an employer, both failed to take steps to educate or properly train themselves or their employees about the relevant legislation and SCUBA practices needed for safety. However, Blackburn’s moral blameworthiness was less because he didn’t receive the support or training he needed from his employer and he “honestly but mistakenly believed in the lawfulness of his actions while supervising” the divers, said the court.
The court also noted that Blackburn took responsibility for his role in Brown’s death and was remorseful.
A consultant offers 10 tips for making health and safety training stick.
Connection between profit and unsafe practices
However, Blackburn made the divers responsible for their own safety and ignored safety practices with the aim of increasing their sea urchin intake, making a connection between profit and unsafe practices onboard the board, the court said.
The court imposed a fine of $12,500 for each of the two charges plus the mandatory victim surcharge levy. However, the fines were to be paid out over 20 years, with a minimum payment each year. He was also given two years’ probation and 100 hours of community service to be completed within two years. In addition, if he began employment on any vessel, he was required to provide confirmation to his probation offer that he would not be acting in any capacity as a diving supervisor.
