Workplace accident was employee’s fault: Court

Employer took precautions against foreseeable safety hazards but employee’s carelessness caused workplace accident

An Ontario company has been exonerated from responsibility for a worker’s injury after a provincial offences court found the incident stemmed from the worker’s own carelessness in dismissing health and safety charges against the company.

Toronto-based Aecon Utilities, a construction and infrastructure development company, was contracted to install new cable and telephone lines at a site in Orangeville, Ont. The project began on Jan. 1, 2007, and involved a process where underground utilities were located and exposed before drilling for new installations. This was to ensure existing underground utilities wouldn’t be damaged.

Aecon used directional drills, large machines that were operated at a fixed location while a worker, called a locator, moved the drill tip along the desired path. On Jan.17, 2007, Valdemar Veiga, a nine-year employee of Aecon, was working as a locator installing telephone lines in Orangeville. He had a two-way radio that allowed him to communicate with the drill operator.

Tangled with drill bit

After locating and exposing existing utilities, Veiga was guiding the directional drill as it drilled the ground for new installations. He soon noticed a steel rod was wrapped around the drill head. Veiga tried to dislodge the rod by hitting it with a sledgehammer, but a piece remained. He tried twisting the rod off with a pipe wrench but the wrench got caught in Veiga’s coat, which then became tangled with the still-spinning drill head. Veiga was pulled around the drill head several times.

Another worker nearby noticed what was happening and called the operator to stop the drill. He and another worker lowered Veiga to the ground and called for emergency assistance. Veiga sustained serious injuries.

An investigation by the Ontario Ministry of Labour revealed Veiga had been trained on a smaller make and model of drill, but not this particular type of drill. Though the drills were similar, the larger one was more powerful and had more pull. Aecon was charged with failing as an employer to ensure its machines and equipment were used according to the operating manual and failing to provide information, instruction and supervision to protect Veiga’s health and safety, both violations of the Ontario Occupational Health and Safety Act.

The court heard Veiga had been trained on the operation of the directional drill and should have had a knowledge of the “basic workings of the machine,” since the manual refers to the role of the locator. However, there were some inconsistencies with Veiga’s version of events and that of the operator and supervisor.

Veiga claimed he discussed the rod wrapped around the drill head with the operator and the operator went to look for a tool to remove it. When nothing was found, Veiga said he came up with the idea of using the wrench so they wouldn’t have to drive back to the yard for tools or a new drill head. However, the supervisor wasn’t consulted and had another drill head in his truck that could have been used.

Employees have safety responsibilities

The court found responsibility for compliance under the act lies not just with the employer, but also the employee. The act says no worker should use any machine or equipment or perform work that could endanger himself or co-workers. The court also noted the drill’s safety manual stated its information didn’t replace safety codes or local laws. The Aecon employee safety information manual also stated employees “must accept safety as personal responsibility,” stay alert to possible hazards and check the work area for safety risks.

The company’s health and safety manual, which Veiga acknowledged having read, also specifically warned against using pipe wrenches on moving machinery and keeping loose clothing away from rotating equipment. Aecon also had weekly “tool box talks” where workers discussed incidents and proper safety procedures, updated its safety manual annually, provided regular training, had annual audits by the Construction Safety Association of Canada and trained the supervisor.

The court found Aecon lived up to its obligation for due diligence and to promote safety at work. Veiga should have known not to use the method he did to dislodge the rod and to have been more careful with his clothing. There were other, more safe, courses of action he could have taken and Veiga had a duty of care to live up to his part of ensuring workplace safety, said the court.

“The company had appropriate tools and replacement parts onsite for foreseeable underground hazards,” said the court. “In this case, shutting down the machine was the standard of care and anything short of this measure would not be acceptable.”

The court dismissed the charges against Aecon. See R. v. Aecon Utilities (Dec. 4, 2009), Walker, J.P. (Ont. Prov. Offences Ct.).

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