Worker contributed to own death: Court

Court finds equal culpability between supervisor killed in construction site accident and two contractors on the site

Two Ontario companies have been convicted for safety violations in the death of a worker at a construction site but the worker himself was partly to blame, the Ontario Court of Justice has ruled.

In February 2006, the City of Ottawa was upgrading and replacing a pumping station and water main. Thomas G. Fuller and Sons, an Ottawa civil engineering firm, was hired to oversee the the installation of new systems. While Fuller looked after the installation of cement-coated steel large-diameter pipes outside the station, it awarded a subcontract to Black and McDonald (B&M), another Ottawa company, to do mechanical and electrical work inside.

Fuller didn’t have much experience with installing the type of pipe being put in outside, so it offered part of that contract to B&M, since the latter had some expertise. B&M had enough on its plate so it declined, though it offered some of its workers to help.

Two B&M workers were assigned to join Fuller workers on the outside installation and Yves Blondin, a B&M supervisor, would check in periodically to verify the work for billing purposes. The outdoor installation of the large-diameter pipe began on Feb. 13, 2006.

The sections of pipe were lifted by a crane and adjusted by pulling on both sides. After a few days, however, the crew had some difficulty putting in a piece with a different shape. After being unable to install the piece, the Fuller supervisor instructed his workers to build a wooden frame as part of a four-point pulling system that would help adjust the piece into the proper position.

The frame was used on Feb. 21 to help with the final positioning of the pipe. As the work was going on, Blondin came by to check on the B&M employees. He decided to help out and stood beside the piece of pipe as it was going into position. He asked the Fuller workers to increase the tension on their side of the pulling system. Suddenly, the wooden frame snapped from the extra force and a section of wood fell on Blondin. After being rushed to a hospital, Blondin died from his injuries.

Fuller and B&M were charged with a total of five counts between them of violating Ontario’s Occupational Health and Safety Act for contributing to the fatal accident. Safety inspectors didn’t see anything wrong with the method Fuller had developed to move the pipe section. However, an inspector concluded after the fact the wooden frame was not sturdy enough to withstand the force applied to it. Before the frame was put together, the workers had been using generally accepted procedures. However, the frame hadn’t been designed, tested or rated to resist specific loads. There was also no way the workers could monitor the strength of the force being applied to it or whether it exceeded its capacity.

The court found both Fuller and B&M were diligent in their safety programs and neither had previous safety issues. It dismissed three of the counts that accused the companies of failing to ensure the frame was constructed to withstand the limits and forces to which it was likely to be subjected during the project because “it would be impossible to anticipate every situation where the creativeness of workers on a job site might create a dangerous situation.”

However, the court found the remaining charges, which accused the companies of failing, as employers, to take “every precaution reasonable in the circumstances for the protection of a worker” because they didn’t test the frame, conduct a hazard analysis or provide a means of gauging the forces applied to the structure before proceeding.

The court also found the frame and pulling system could have reasonably been expected to be safe, but the workers moved away from accepted procedures as they altered their methods.

“It could be said the method of using wooden timbers and pullers was indeed a safe method,” the court said. “However, as this method evolved, the way these workers purported to implement it, ultimately became unsafe.”

Since the worksite became unsafe and Blondin, a supervisor, was the one who gave the instruction to apply the force that broke the frame, Fuller and S&M were ultimately responsible as employers for the unsafe conditions that caused the accident.

While both companies were found guilty in a “strict liability” sense, the court said there wasn’t a “wanton and reckless disregard” of regulations. It felt was important to consider in determining the fines.

Blondin was not directly involved in the project, the court said, but he decided to jump in and participate in the work, which was outside of his job description. He stood beside the pipe in the immediate danger zone and he gave the instruction to apply the extra force which ultimately broke the frame. As a result, the court found Blondin himself had some responsibility in the accident that caused his own death.

“(Blondin) was largely instrumental to his own demise,” the court said. “I must assess him with a significant degree of culpability.”

The court felt a $250,000 total fine was appropriate, to be shared equally among the parties responsible. Because Blondin played a substantial role in the accident, the court ruled he was as culpable as the employers. Fuller and B&M were each only assigned one-third responsibility for the accident and were fined $85,000 each.

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