Workplace accident employee’s fault: Court

Employer took precautions but worker’s carelessness caused serious injuries

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 and dismissed health and safety charges against the company.

Toronto-based Aecon Utilities, a construction and infrastructure development company, was contracted to install 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, Valdemar Veiga, a nine-year employee at Aecon, was working as a locator. He had a two-way radio that allowed him to communicate with the drill operator.

After locating and exposing existing utilities, Veiga was guiding the directional drill. He noticed a steel rod was wrapped around the drill head and tried to dislodge the rod by hitting it with a sledgehammer. A piece remained so Veiga tried twisting the rod off with a pipe wrench but it got caught in his coat, which became tangled with the still-spinning drill head. Veiga was pulled around the drill head several times.

Another worker called the operator to stop the drill. They 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.

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, heard the court. However, there were some inconsistencies with Veiga’s version of events and those of the operator and supervisor.

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

Employees have safety responsibilities too

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

The manual, which Veiga acknowledged having read, also specifically warned against using pipe wrenches on moving machinery and having loose clothing around 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.

Aecon lived up to its obligation for due diligence and to promote safety at work, found the court. Veiga should have known better. There were other, safer 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 on-site 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.

For more information see:

R. v. Aecon Utilities (Dec. 4, 2009), Walker, J.P. (Ont. Prov. Offences Ct.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a biweekly publication that looks at workplace law from a business perspective. For more information, including a special introductory offer for new subscribers, visit

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