Unforeseen sequence of events largely reason for accident, but company could have done more to ensure truck wouldn’t be moved
An Alberta company has had three out of four charges for safety violations dismissed in the wake of an employee being run over by a tractor trailer while attempting to repair a flat tire.
Kal Tire was a tire shop in Acheson, Alta., where it sold and changed tires for all sizes of vehicles. Max Bachynsky and Ryan Town were both employees of Kal Tire.
Kal Tire provided safety training for its employees, consisting of a mix of computer-based courses, videos, and other documents. The training included the lockout procedure, which specified work was not to be performed on equipment until it is tested to ensure it can’t accidentally start up. For vehicles, this meant taking the keys from the owner or placing an “out of service” sign on the vehicle. In addition, employees were required to conduct a 360-degree walk around a vehicle before removing a lock tag to move the vehicle.
Kal Tire also held regular worksite safety meetings to ensure employees were up to date on procedures after an August 2013 audit that revealed some shortcomings in the procedures on the concrete truck pad. The audit recommended new lockout tags, having the front counter take all work orders to the pad, and truck drivers remaining in the waiting area.
On Oct. 14, 2014, a customer brought a semi-tractor and trailers into Kal Tire to get a flat tire repaired. After a work order was created indicating the tire to be changed was on the front passenger side of the rear trailer —an error as the tire that needed to be changed was on the rear wheel — Town asked the customer to move his truck onto a concrete pad near the tire shop. As the customer moved the truck, Town and Bachynsky directed him into a specific lane on the concrete pad, where he put on the air brakes and parked the vehicle.
Bachynsky had been working on another truck and came over to the new arrival. He told the driver to go inside to wait and put an “out of service” sign on the driver’s side door. Bachynsky then put chocks in front of and behind the drive wheel of the truck on the driver’s side. However, the keys weren’t taken from the customer.
Bachynsky retrieved a bottle jack to raise the axle with the flat tire and checked the work order specifying the incorrect tire to change. However, Town was expecting to do the job since he had been interacting with the customer and when he saw Bachynsky go into the office to get a jack, he thought he was going to work on another vehicle. They hadn’t spoken to each other to clarify who was doing the job.
Town walked around the vehicle to check the tire indicated on the work order and found it to be fine. He walked over to the customer, who clarified it was the rear outer tire on the rear trailer passenger side that actually needed changing. Town confirmed it was this tire that was flat.
Since the tire that actually required changing was not on the concrete pad, Town told the customer he would have to move the truck forward — otherwise, jacking up that axle would risk the jack sinking into the asphalt. While they walked along one side of the vehicle to the front, Bachynsky went in between the two front axles of the rear trailer and jacked the front axle so the two front wheels were nearly off the ground.
Workers unaware of each other
While Bachysnky started his work, Town — unaware of what Bachynsky was doing back by the trailer — removed the chocks from the driver’s side of the truck so the customer could move the truck forward. He left the “out of service” tag in place on the door, though this was contrary to safety training as the vehicle was going to move. Bachysnky didn’t hear the truck’s motor start and the air brakes release as he was at the back and there were background noises drowning them out. In addition, he was wearing a headset with a phone on which he had been talking. He was also out of sight of the truck’s rear-view mirrors.
Since they had just walked the length of the vehicle, neither Town nor the customer did a full walkaround this time, though they had missed Bachynsky getting into place at the rear trailer. The customer moved the truck forward at Town’s direction and Town noticed the middle of the trailers move up and down — they had come off the bottle jack. He then saw Bachynsky underneath beginning to scream, and told the customer to move the vehicle forward to get the wheels away from Bachynsky. The store manager came out and they helped Bachynsky get out from under the rear trailer.
Kal Tire was subsequently charged with five counts of safety violations under the Alberta Occupational Health and Safety Act:
• Failing to ensure the safety of Bachynsky as far as it was reasonably practicable
• Failing to ensure machinery or equipment was tested and inspected to ensure it was at a complete stop
• Failing to ensure walkways were designated to separate pedestrian and vehicular traffic
• Failing to take all reasonable steps to ensure equipment is restrained to eliminate potential danger
The court found that it was reasonably foreseeable that employees might not communicate and each would think he was responsible for changing the tire, and something could have been in place to prevent this. It was also reasonably foreseeable that two employees could be on either side of the vehicle and not be able to see each other, an error could be made on the work order, and Bachynsky wouldn’t be able to hear the air brakes or truck engine among the background noise on the truck pad. All of these were potential dangers that were reasonable foreseeable, said the court, which is why the rules for “out of service” tags and complete walkarounds were in place.
However, the court also found that there were two sources of danger that weren’t reasonably foreseeable: The tire that actually needed repair was not positioned safely on the concrete pad, and the partial walkaround by Town and the customer was just before Bachynsky arrived back with the bottle jack, so they just missed each other and worked at cross purposes at the same time.
In addition, the court noted that there was no statutory requirement to take away the driver’s key and safeguard it until work was completed — even though Kal Tire instituted such a policy after Bachynsky’s accident. When they sent the customer into the office with his key, along with placing the “out of service” tag on the truck door, it was “sufficient to ensure the safety of its employees as far as reasonably practicable,” said the court in dismissing count 1 against Kal Tire.
As for the second count regarding machinery, the court found that Kal Tire didn’t show due diligence, as while the truck was initially brought to a complete stop, precautions were not made to prevent it from starting up again — the customer was brought back to the truck to move it while the lockout procedures were in place. The second count was upheld.
The court dismissed count 3, as while specific walkways weren’t designated, the pad and surrounding area of the worksite had specific lanes clearly marked by solid lines and the word “stop” was clearly painted at the appropriate locations. The walkways were “sufficiently marked and controlled so far as reasonably practical,” said the court.
Finally, the court found Town and Bachynsky followed the proper lockout procedures as far as ensuring the truck was controlled and wouldn’t move unexpectedly — through the use of chocks on the wheels and the air brake on the truck. Bachynsky’s injuries were caused when the truck was purposely moved, not when it was restrained, said the court.
As a result, the court determined Kal Tire was only guilty of count 2 against it — failing to ensure machinery or equipment was tested and inspected to ensure it was at a complete stop while a worker was working — with sentencing to be determined.
For more information see:
• R. v. Kal Tire, 2017 CarswellAlta 1799 (Alta. Prov. Ct.).
