Canadian Safety Reporter

5 Canadian HR Reporter, a Thomson Reuters business 2015 5 Canadian HR Reporter, a Thomson Reuters business 2016 News | July 2016 | CSR City's conviction after death and injury of road workers set aside Vehicle hitting workers on side of road not in itself proof of safety offences; new trial ordered with re-evaluation of charges BY JEFFREY R. SMITH THE NEWFOUNDLAND and Labrador Supreme Court has overturned the health and safety convictions of a municipality and ordered a new trial in the wake of a highway accident that killed one employee and injured two others. 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 group decided to visit various locations around St. John's to look at the state of city streets and a provincial high- way. All of the employees were experienced in roadside inspec- tions, though it was assumed the city employees would take lead on the city roads and the DTW employees would do so for the highway. There was no discus- sion about safety nor were any concerns about safety raised. After visiting the first site that was within walking distance of the meeting place, 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. When they reached the pro- vincial highway site, they set up according to 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 and the other vehicles behind it. The employ- ees were also crossing over to the median to look as the asphalt there. Drivers seemed to be un- certain of what to do when they saw the vehicles along the shoul- der and the workers on the me- dian — some slowed down while others didn't. A car driven by an inexperi- enced driver didn't see another vehicle slowing in front of him and swerved to avoid the other vehicle. The driver lost control after swerving and hit some of the employees. Two of the em- ployees 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 pro- vide and maintain a workplace and equipment without risk to workers; failing to provide infor- mation instruction, training and supervision to ensure worker safety; and exposing workers to safety hazards. The employ- ers were also charged under the OHS Regulations, 2009 for: failing to ensure safe work pro- cedures are followed; failing to ensure the "safe interaction of workers and their work environ- ment to minimize the potential for injury;" and failing to ensure effective traffic control where moving traffic constituted a haz- ard to workers. The Newfoundland and Lab- rador Provincial Court found that the driver's careless driving was the most direct cause of the accident, which means the em- ployers didn't have to foresee it and plan safety procedures in re- sponse to "extreme driving situ- ations." However, their duty was to take reasonable steps to get the attention of drivers and 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 provincial court also found it was the nature of that particular workplace where traffic in general was a hazard, so while extreme driving may not be foreseeable, moving ve- hicles 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 employ- ees and there was no discussion of following it. In addition, there was no hazard assessment taken, even though the manual refer- enced the need for one. The provincial court deter- mined that DTW and the city failed to establish that their em- ployees 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 employ- ees were senior employees and a supervisor, both organiza- tions were responsible for them when they were acting "within the scope of their duties in terms of workplace safety," said the provincial court in fining the city $23,000 and ordering it to pay $37,000 for the purpose of developing a public education program on highway safety (see the February 2016 issue of Cana- dian Safety Reporter for more on this decision). The city appealed the decision Credit: Shutterstock/Taras Vyshnya Accident > pg. 8

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