Careless driver that hit workers alongside road not foreseeable, but not all precautions were taken to protect them: Court
A Newfoundland and Labrador government department and municipality have both been convicted of breaching the province’s Occupational Health and Safety Act after several employees of both were struck by a car while working on a highway median. One of the employees was killed.
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 meeting was held at DTW’s offices in St. John’s.
After some discussion, the group decided to visit various locations around St. John’s to look at the state of city streets and a provincial highway in the area. All of the employees were experienced in roadside inspections, though they didn’t discuss each of their experience and safety knowledge with the employees of other parties. No formal leadership was discussed for the inspections, though it was assumed the city employees would take lead on the examination of city roads and the DTW employees would do so for the highway review. There was no discussion about safety nor were any concerns about safety raised.
A DTW project engineer who was part of the group said later there was no discussion among the workers about how to do the roadside inspections because they had “done enough of these.”
One of the city employees was well-versed in health and safety and traffic control training, but his recollection was somewhat vague and the others had difficulty recalling most of what they had received.
After visiting the first site that was within walking distance of the meeting place at the DTW office, 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. The roads were wet after some light rain, but it wasn’t raining at the time and visibility was good.
When the group reached the provincial highway site, they set up according to guidelines in 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 for oncoming traffic and the other vehicles in front of it. The examination of the road involved the employees crossing over to the median to look as the asphalt there.
Approaching drivers seemed to be uncertain of what to do when they saw the vehicles parked along the shoulder and the workers on the median — some slowed down while others didn’t. At one point, one of the DTW employees expressed concern that traffic wasn’t reacting well to their parked vehicles and the flashing lights, so the director of highway design and construction decided to tell them all to move back from the median.
Workers hit by out-of-control vehicle
Before the employees could move back from the median, a car driven by an inexperienced driver didn’t see another vehicle slowing in front of him. The car swerved to avoid the other vehicle and saw the DTW and city vehicles on the side of the road and the workers on the median. The driver lost control 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 province’s 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 court noted that due diligence requires employers to take reasonable care and can only do what is reasonably practical to prevent what is foreseeable. The city and DTW argued that it was “an impossible burden” to expect them to foresee the actions of careless, inexperienced or drunk drivers and the occupational health and safety legislation provided no specific requirements for this type of workplace. They claimed their employees were experienced and used their “best engineering judgment” along with common sense and there was nothing more the employers could do as part of their duty of reasonable care.
Risk could have been decreased
The court found that it was the driver’s careless driving that was the most direct cause of the accident, which means the employers didn’t have to foresee the specific incident 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 use 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 court also found it was the nature of that particular workplace where traffic in general was a hazard, so while extreme driving may not have been 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 between them of whether they should follow it. In addition, there was no hazard assessment taken, even though the manual referenced the need for one.
It was also evident to the court that the employees didn’t follow procedures outlined in the Newfound and Labrador Traffic Act, which stipulated “Where work is carried out on a highway or an activity is conducted that obstructs all or part of the travel lane of a highway, the person responsible for carrying out that work or causing that obstruction shall ensure that (a) warning signs or other markers; or (b) persons with a flag or sign; are used to control the movement of traffic around that work or obstruction and to warn persons of the section of highway that is being worked upon or is obstructed.”
The confusion of the drivers with only some slowing down also pointed to a need for a better setup along the side of the road that provided better sightlines for drivers and a clear direction for them to slow down, said the court.
The court determined that DTW and the City of St. John’s 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 involved 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 court.
“The employees of both organizations showed a similar lack of appreciation of the hazard and the need to specifically address worker safety at the (highway) site,” said the court. “If these employees present as such, the employer must be held to have failed to prove the exercise of due diligence on a balance of probabilities.”
For more information see:
• R. v. Newfoundland and Labrador (Department of Transportation and Works), 2014 CarswellNfld 381 (N.L. Prov. Ct.).
