Deadly distraction: Supervisor, company convicted after Alberta worker struck and killed

A construction worker controls traffic. Photo: Rose Makin/Adobe Stock

An Alberta court has convicted a contracting company and one of its supervisors under the province’s Occupational Health and Safety Act after a worker was struck and fatally injured by a pick-up truck.

Habtom Abraha, who worked for Volker Stevin Contracting, was killed on Oct. 2, 2019, while he was conducting routine inspections of storm drain catch basins on a residential street in Airdrie, Alta.

He was runover by a pickup truck being driven by Michael O’Neill, a utilities foreman and supervisor at Volker Stevin.

What happened?

The incident unfolded as Abraha and O’Neill, a two-person crew, were inspecting a catch basin next to a residential driveway.

O’Neill had parked the vehicle they were driving, a Ford F-550 company truck, in front of the private driveway — inadvertently blocking it. Abraha was working in front of the vehicle while the supervisor was on a phone call in the truck. As this was happening, the homeowner arrived and opened his garage door.

“O’Neill was so focused on this call that he did not even end the call when (the homeowner) arrived looking to enter his driveway,” the Court said in the ruling, adding that his distraction was compounded by the fact he didn’t want to inconvenience the homeowner who was trying to get his car into the garage.

As a result, O’Neill pulled forward about two metres, “moving the vehicle without concerning himself with safety generally, and Abraha’s safety in particular,” the Court said.

Abraha was run over by the truck, suffered catastrophic injuries, and was killed instantly.

Charges laid

Volker Stevin along with O’Neill, faced multiple charges under the Occupational Health and Safety Act for failing to ensure the safety of their workers.

“The evidence of the primary investigator included photographs taken while sitting in the driver’s seat of the work vehicle. I accept her evidence that at the distance Abraha was from the truck, the driver of the vehicle would not be able to see Abraha in a ‘kneeling down’ position in front of the truck,” the Court said.

It was particularly critical of Volker Stevin’s vague and unenforced safety protocols.

“Creating a visual control zone with cones signifying an area into which the vehicle is not to drive, and ensuring when parking the vehicle that it is sufficiently behind the area within which work is to be completed so that the work is not being conducted within the blind spot of a driver,” were cited as reasonably practicable steps that were neglected by the company.

Victim blaming?

The defense argued that the actions of Abraha, such as his placement near the vehicle, were not reasonably foreseeable by the defendants and that it was up to him to ensure his own safety. The Crown said that argument was akin to victim blaming, an opinion the Court agreed with.

“Workers, of course, have some responsibility for their physical, psychological and social well-being while working,” the Court said. “However, to suggest this responsibility is the first that should be considered after a workplace incident fails to recognize that there are many aspects of workers’ employment and its safe conduct that they cannot control but which are controlled by their employers.”

It said the argument of the defendants failed to consider the “power imbalance” between the employers and the worker or supervisor.

Truck was not the hazard: Court

The Court pointed out that the work truck, on its own, did not create the hazard that resulted in the fatality. Instead, it was the utilization of the truck as a “shield” — protecting the worker from traffic — and leaving it running while in close proximity to workers that created the hazard.

It said a walkaround should have been required in these situations before moving the vehicle, rejecting an argument from the defense that it could “result in workers at worksites needing to do a walk around every time they get in a motorized vehicle, which is unreasonable given that in most circumstances doing so is neither necessary nor reasonable.”

Using the truck as a shield to protect workers meant that it had been “converted into a safety device,” the Court said, and Volker Stevin was obligated to put in place safety precautions as a result.

That could include creating a visual control zone with cones signifying an area into which the vehicle is not to drive and ensuring that, when the truck was parked, work was not being carried out in a blind spot. The Court accepted those steps as “appropriate safety precautions” that could have been taken in this case.

Convictions: Supervisor

O’Neill was convicted on three counts, in part for his failure as a supervisor to protect the safety of his subordinate. His responsibilities included overseeing the safety and proper execution of tasks by less senior workers like Abraha.

The court found that “a ‘reasonably practicable step’ that a supervisor should take to fulfill their obligation to a worker in their two-man crew is to ensure the worker’s location is known before moving the vehicle.”

O’Neill’s failure to perform this fundamental safety check led directly to the tragic accident. Thus, the court convicted O’Neill of failing to take necessary precautions as a supervisor to protect Abraha, effectively holding him accountable for the oversight that led to Abraha’s death.

“The reasonable steps he may have taken to ensure Abraha was not exposed to danger prior to moving the powered mobile equipment include several commonsense steps such as ending his call, getting out of the truck to confirm where Abraha was working and ensuring that his focus was on his operation of the powered mobile equipment as opposed to the phone call,” it said.

Convictions: Company

Volker Stevin Contracting was convicted on four counts, including:

• Failing to ensure that Abraha was beyond the range of powered mobile equipment while working.
• Failing to sufficiently or adequately train employees in work around catch basins and powered mobile equipment. This count was conditionally stayed.
• Failure to ensure O’Neill was trained in the safe operation of equipment he was required to operate. This conviction was later stayed.
• Permitting a part of powered mobile equipment to create a danger to a worker, Abraha, allowing him to remain within the range of the equipment.

At press time, the sentences for these convictions were unknown. For more information, see R v. Volker Stevin Contracting Ltd., 2024 ABCJ 85 (CanLII).