Canadian Safety Reporter - sample

4 Canadian HR Reporter, a Thomson Reuters business 2019 April 2019 | News working on the partially-con- structed house. Giesbrecht was on the second floor working on a section of a wall. There was a hole in the floor nearby measur- ing about eight feet by eight feet that was to be the location of a yet-to-be-installed staircase. After finishing work on the wall, Giesbrecht stood up and unwit- tingly fell into the hole. Giesbrecht fell all the way from the second floor onto a concrete floor in the basement, a drop of about 20 feet. Reddekopp didn't witness the fall but found Gies- brecht on the basement floor, prompting a call to emergency services. Giesbrecht had to be lifted out of the basement with ladders and a conveyor system through a basement window hole. Upon arrival at the hospi- tal, Giesbrecht was diagnosed with fractured hips, a fractured pelvis, seven broken ribs, and a broken shoulder. Giesbrecht underwent sur- gery and was confined to a bed for three months after the inci- dent. No safety measures around stairwell opening A review of the accident scene by an occupational health and safe- ty officer revealed that a ladder between the main floor and the upper floor landing was bent, in- dicating Giesbrecht likely hit the ladder as he fell. It was also evi- dent the hole in the floor was not covered, nor did it have a guard- rail or toeboard — requirements of Saskatchewan's The Occupa- tional Health and Safety Regula- tions, 1996. A stepladder leaning against the wall was the method of moving between the first and second floors. Norred was charged with two violations of the regulations. The two charges included failing to ensure an opening or hole in a floor into which a worker could fall was covered with a "securely installed covering that is capable of supporting a load of 360 ki- lograms per square metre and that is provided with a warning sign or permanent marking" that caused a serious injury, and fail- ing to ensure an opening or hole in a floor had a guardrail and toe- board, resulting in a serious inju- ry. The 20-foot drop was greater than the permissible distance for not having such precautions in place. The Saskatchewan Provincial Court noted that Norred had an obligation to ensure that any opening in the floor into which a worker could step or fall was either covered appropriately or provided with a guardrail and toeboard, as required by the regulations. The occupational health and safety officer clearly observed there were no such precautions taken at the site, and both Reddekopp and Giesbrecht acknowledged that was the case. The court found that though Giesbrecht had a signed agree- ment with Norred that indi- cated he was an independent contractor, there were other factors more common with an employment relationship — Giesbrecht was paid wages for hours worked, Norred supplied most of the tools and supplies for the project, and only Nor- red took on the risk of loss if the project failed. Norred controlled the work and completed it after Giesbrecht's injury, the court said, making the Giesbrecht a worker for the purposes of the protections in the regulations. "Mr. Giesbrecht was a person engaged to perform services in support of Norred's business and not as a person in business on his own account," said the court. "Based on the evidence, I am satisfied that Mr. Giesbrecht was a 'worker' for the purposes of that word within the scope and intention of the act and the regulations." With no doubt over the lack of required safety measures, Gies- brecht's status as a worker, and the occurrence of the accident, actus reus — the physical act of committing the safety violations — was proven and could only be defended if Norred could prove it did everything reasonably practicable to avoid the accident. Reddekopp testified that Nor- red didn't put in the safety mea- sures around the hole because he had been anticipating the stair- well arriving that day and install- ing it immediately. However, the court noted that the regulations also specified that if a covering or guardrail needed to be removed for any reason — such as install- ing the staircase — the employer was required to provide "an ef- fective alternative means of pro- tection" in the meantime. Nor- red didn't do this, said the court. Incident was foreseeable The court also found that it was foreseeable that someone could fall down the stairwell hole and into the basement without safety measures in place. In addition, both Giesbrecht and Reddekopp were experienced contractors, were knowledgeable of safety requirements and should have been aware of the safety require- ments and obligations. "I am satisfied that a fall of this nature and the resulting injuries are directly what the legislated requirements aim to prevent through having a covering or guardrail to limit the changes of falling or, at a minimum, limit the distance fallen," said the court. However, the court noted that it was difficult to cover an open- ing such as one for a stairwell with a covering capable of sup- porting a load of 360 kilograms per square metre — the occupa- tional health and safety officer who investigated even said "I honestly don't know" how such a hole could be covered. As a re- sult, the court determined there were no practicable means for Norred to cover the hole and found the company not guilty of the first charge of failing to cover the hole. As for the second charge, it was a different story. The court found that guardrails could have and should have been installed around the hole and could be ad- justed or removed as necessary if the stairs arrived. It turned out guardrails were being prepared to be installed after the stairwell was in place, but Giesbrecht and Reddekopp had been working onsite for five hours with no safety measures when the inci- dent happened. This was a vio- lation of the regulations and the fall was "what the guardrails may have prevented." The court found Norred failed to take all reasonable safety pre- cautions when it didn't install guardrails around the hole when work began on the day of the in- cident. As a result, the company was guilty of the second charge under the occupational health and safety regulations. For more information see: • R. v. Norred Construction Ltd., 2019 CarswellSask 78 (Sask. Prov. Ct.). Not feasible to cover large opening, but guardrails necessary One conviction < pg. 1 Credit: Shutterstock/Tom Grundy

• Cover