Company had sufficient safety procedures but couldn’t have anticipated experienced worker’s failure to follow them
An Ontario construction company has been acquitted of charges following the death of a worker after the Ontario Court of Justice determined the worker failed to follow safety protocols in a way which the company could not have foreseen.
Trisan Construction is a construction company based in Schomberg, Ont. Trisan maintains a yard containing a large pile of fill brought by dump trucks from construction sites. Each dump truck that brings fill dumps it at the base of the pile, while bulldozers organize it. Typically, it was a “self-contained operation” with no independent spotters — only the truck driver and bulldozer operator were involved in the dumping on the pile, unless there were multiple trucks waiting, in which case separate individuals would act as bulldozer operator and signaller. Employees working as signallers were instructed to ensure the driver of a reversing truck could see them at all times and when acting as a signaller were to do no other work at the same time.
Every Monday morning Trisan held toolbox talks that discussed safety issues including backing up hazards and signalling. The company also conducted health and safety orientations for new employees, annual mandatory safety orientations each spring, and had an employee handbook containing safe operating procedures for heavy operated equipment and vehicles. The handbook included the instruction to look before reversing equipment or trucks and to use a signaller at all times.
Kenneth Campbell was a bulldozer operator at Trisan’s yard with the responsibility of maintaining the pile. He had worked for several years with Trisan without any problems, both with bulldozers and as a signaller.
On Sept. 10, 2012, Campbell was operating a bulldozer and signalling truck operators as they backed their trucks to the pile. A dump truck arrived at the yard and in order to dump its load on the pile, it had to initially reverse straight back towards a wall and then swing the rear of the truck 90 degrees to the left towards the pile. Campbell positioned his bulldozer beside the wall and stood on one of its tracks as the truck backed up towards the wall. However, the driver didn’t swing to the left when he needed to and continued to reverse towards the wall and where Campbell was with his bulldozer. The dump truck collided with the bulldozer and Campbell, who was still standing on the bulldozer’s tread, was fatally injured.
The truck driver said he saw Campbell in his bulldozer on top of the pile and Campbell waved at him to bring his load over to the pile. He began reversing slowly and didn’t see anything in his mirror, assuming Campbell had remained in his bulldozer on top of the pile. The driver was conscious of an excavator to the right that he needed to avoid and continued reversing when he felt “a little contact.” He got out and saw the bulldozer immediately behind his truck, with Campbell standing with one leg in the cab. Campbell fell to the ground and asked why he hit him, and the driver said he didn’t see him and thought he was on top of the pile. The driver sought help, but Campbell died from his injuries.
A post-mortem examination of Campbell showed that he had THC — the psychoactive ingredient of marijuana — in his blood at the time of the accident.
Company charged
The Ontario Ministry of Labour investigated the accident and laid the following charges against Trisan under the Occupational Health and Safety Act:
• Failing to follow the regulation under the act specifying that “every project shall be planned and organized so that vehicles, machines and equipment are not operated in reverse or are operated in reverse as little as possible.”
• Failing to ensure that the operator of a vehicle whose path is obstructed or could endanger a person is assisted by a signaller who is a competent worker and not performing other work while signalling and is clearly visible or communicating by telecommunication.
Trisan argued that it took all reasonable safety precautions through distribution of a safety policy to all employees that included proper signalling. It also regularly monitored the effectiveness of the policy and claimed that the accident was caused by the failure of the truck driver — who wasn’t a Trisan employee — to wait for Campbell to act as his signaller and his failure to make the necessary 90-degree turn while reversing. The company also said Campbell contributed to the accident by failing to move to safety, which was probably because of impairment from marijuana. These were exceptional circumstances which it could not have foreseen, the company said.
The court found that on Sept. 10, 2012, Campbell and the dump truck driver didn’t follow proper signalling procedure. Campbell didn’t place himself in view of the driver and didn’t maintain visual contact during the truck’s backing up process — instead, he remained on his bulldozer and gestured for the driver to begin backing up. The driver didn’t see Campbell in his mirror because Campbell was moving his bulldozer off the pile directly behind the truck, and didn’t see the bulldozer or make the 90-degree turn “for reasons which remain unclear,” said the court.
The court also found that Trisan’s safety protocols, employee training, and monitoring of its yard showed “an effective precaution to ensure that an employee called upon to signal a reversing truck in the yard would do so to the exclusion of all other jobs and ensuring that he was seen throughout the reversing process” — protocols of which Campbell was aware and normally followed.
The court noted that Trisan failed to implement a procedure on Sept. 10, 2012, in which Campbell, as a designated signaller, was prevented from carrying out other duties, but this didn’t mean the company didn’t show due diligence. Rather, Trisan’s safety protocols met the duty of due diligence and Campbell’s actions on the day of the accident — along with the fact he had marijuana in his system — were not foreseeable and Trisan could not have done anything more to prevent the accident.
“The preponderance of the due diligence evidence in the record… is that Mr. Campbell understood the visibility and exclusivity requirements of the signaller’s role and had, prior to Sept. 10, 2012, never been seen not to observe those requirements,” said the court. “Mr. Campbell’s failure to observe proper signalling procedure that day is not something which Trisan could reasonably have foreseen.”
The court dismissed the charges against Trisan.
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