Vehicle hitting workers on side of road not in itself proof of safety offences; new trial ordered with re-evaluation of charges, occupational health and safety act
The Newfoundland and Labrador Supreme Court has overturned the health and safety convictions of a municipality and ordered a new trial in the wake of a highway accident that killed one employee and injured two others.
On July 5, 2011, employees and contractors of Irving Oil, the Newfoundland and Labrador Department of Transportation and Works (DTW), and the City of St. John’s met to discuss the degradation of asphalt paving on provincial and city roads.
The group decided to visit various locations around St. John’s to look at the state of city streets and a provincial highway. All of the employees were experienced in roadside inspections, though it was assumed the city employees would take lead on the city roads and the DTW employees would do so for the highway. There was no discussion about safety nor were any concerns about safety raised.
After visiting the first site that was within walking distance of the meeting place, the employees travelled to the other sites in three vehicles — an SUV rented by the Irving Oil employees, a personal car of one of the city employees, and a DTW van with a rooftop amber flashing light bar.
When they reached the provincial highway site, they set up according to the city’s traffic control manual with the vehicles on the right shoulder — the DTW van was in the rear with its light bar flashing and the other vehicles behind it. The employees were also crossing over to the median to look as the asphalt there. Drivers seemed to be uncertain of what to do when they saw the vehicles along the shoulder and the workers on the median — some slowed down while others didn’t.
A car driven by an inexperienced driver didn’t see another vehicle slowing in front of him and swerved to avoid the other vehicle. The driver lost control after swerving and hit some of the employees. Two of the employees were injured and a DTW worker was killed.
In the wake of the accident, both DTW and the City of St. John’s were charged under the province’s Occupational Health and Safety Act for: failing to provide and maintain a workplace and equipment without risk to workers; failing to provide information instruction, training and supervision to ensure worker safety; and exposing workers to safety hazards. The employers were also charged under the OHS Regulations, 2009 for: failing to ensure safe work procedures are followed; failing to ensure the “safe interaction of workers and their work environment to minimize the potential for injury;” and failing to ensure effective traffic control where moving traffic constituted a hazard to workers.
The Newfoundland and Labrador Provincial Court found that the driver’s careless driving was the most direct cause of the accident, which means the employers didn’t have to foresee it and plan safety procedures in response to “extreme driving situations.” However, their duty was to take reasonable steps to get the attention of drivers and safe work protocols that would not only protect against foreseeable risks, but also insulate workers from some unanticipated risks such as drunk or careless drivers.
The provincial court also found it was the nature of that particular workplace where traffic in general was a hazard, so while extreme driving may not be foreseeable, moving vehicles were foreseeable threats to workers along the side of the road. Though the city had a traffic control manual, it wasn’t strictly followed by the employees and there was no discussion of following it. In addition, there was no hazard assessment taken, even though the manual referenced the need for one.
The provincial court determined that DTW and the city failed to establish that their employees had taken all reasonable care to ensure a safe workplace and decrease the risk of injury when they were stopped along the shoulder and median of the highway. Because the employees were senior employees and a supervisor, both organizations were responsible for them when they were acting “within the scope of their duties in terms of workplace safety,” said the provincial court in fining the city $23,000 and ordering it to pay $37,000 for the purpose of developing a public education program on highway safety (see the February 2016 issue of Canadian Safety Reporter for more on this decision).
The city appealed the decision to the Newfoundland and Labrador Supreme Court. DTW did not appeal its convictions.
Car accident not proof of offences: Appeal court
The provincial Supreme Court found that the trial court’s decision was focused on the fact that the accident happened, which the trial court determined established the actus reus — the objective fact — of the safety offences. This shifted the burden of proof to the employers to establish due diligence, without which they would be found guilty of the safety offences.
However, the appeal court found the trial court committed legal errors in taking this approach. It agreed that in such cases where the offences “are regulatory or public welfare offences” that are considered strict liability offences, there doesn’t have to be proof of wrongful intention. Instead, proof of the wrongful act alone constitutes prima facie proof of the offence. In such circumstances, however, proof of due diligence in an attempt to avoid the wrongful act can avoid liability, said the appeal court.
The appeal court found that each of the charges the city faced had its own factual elements that required proof of due diligence or a failure thereof — “they will not automatically be the same for each offence.” The trial court had found that it was the actions of the employees performing their work that caused traffic to slow down and drive inconsistently, which contributed to the accident and established the objective fact of the offence of failing to provide a safe workplace. However, the trial court applied this fact to all the other charges, which was incorrect, said the appeal court.
The appeal court noted that the objective fact of an occupational health and safety offence is usually committed whether an accident happens or not — an accident is just a possible outcome as a result of the offence. For example, a failure of an employee to wear a safety belt is a safety violation, regardless of whether the employee falls or not. It isn’t the fall that is the offence. Therefore, using the car accident as the basis for proving the charges was not the right approach, said the appeal court.
“While in some circumstances an accident may provide some evidence of the actus reus of an offence, this is simply a matter of common sense and circumstantial evidence,” said the appeal court. “It is of course true, as it was in this case, that an accident or incident may well provide the impetus for an investigation and the laying of charges, but the accident does not thereby become an element of the offence in question.”
The appeal court found the conclusion that the vehicle striking the employees during their road inspection served as proof of the offences for which the city was charged was an error, especially when this was applied to all of the charges.
“Since this approach, with its emphasis on the consequences of any breach rather than on the identification and proof of the actual element of each breach, permeated the whole conduct of the trial and the adjudication itself, the convictions cannot stand,” said the appeal court. “Proof of the actus reus of each offence was found on a faulty legal premise and without differentiation between the counts.”
The provincial Supreme Court set aside the convictions against the City of St. John’s and ordered a new trial to consider the “particulars of the facts” that are specific to the city and each charge.
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