Seeing the Possibilities
By Emily Landau
It is often said that hindsight is 20/20. Foresight, however, may be a little less reliable. Sometimes there is no way to envision every conceivable possibility, as an Alberta judge recently noted in ...
It is often said that hindsight is 20/20. Foresight, however, may be a little less reliable. Sometimes there is no way to envision every conceivable possibility, as an Alberta judge recently noted in overturning an occupational health and safety conviction against Sunshine Village Ski Resort near Banff.
In her August ruling, Justice Suzanne Bensler of Alberta’s Court of Queen’s Bench determined that the circumstances leading to the death of Jan-Karl Stunt six days after sustaining critical head injuries in the summer of 2004 were not foreseeable. The ruling overturns a provincial court decision last year finding that Sunshine Village had failed to ensure the protection of a worker, contrary to Alberta’s Occupational Health and Safety Act.
Stunt, a 25-year-old mechanic’s helper, and two other employees were conducting ski lift tower work when the incident occurred, the decision notes. Stunt was sitting on the upper part of a work platform with its foldable ladder in the “up” position.
When the platform entered a terminal building, there was insufficient room for the ladder. It broke off and struck Stunt in the head.
His two co-workers testified that they had been properly trained on how to safely enter the terminal, but admitted that none of the three employees were paying due attention at the time of the accident.
In his January 30, 2009 ruling, Justice Manfred Delong of the Provincial Court of Alberta agreed that Stunt’s death was the result of the employees’ momentary carelessness or lack of attention. However, Justice Delong noted, the “liability of the company stems from the lack of steps taken to support these otherwise careful employees.”
For the breach of Alberta’s OH&S Act, Sunshine Village was fined $5,000 and ordered to provide $250,000 to a ski hill management program at a community college in British Columbia. This past March, the company appealed Justice Delong’s ruling.
“My own opinion was that the judge had applied an incorrect test on reviewing the evidence, which was that, in hindsight, certain other things could have been done that would have perhaps avoided the accident,” says J. Paul Brunnen, a lawyer with Brunnen Law Offices in Calgary, who served as counsel for Sunshine Village in the appeal case. “The judge should have taken a look at all the information that was available on the date in question and decided whether or not there was any negligence on the part of the company on that date,” Brunnen comments.
Justice Bensler agreed, noting in her ruling that the trial judge was required to apply the principles of foreseeability and negligence. “The fact that these otherwise conscientious and respected employees should be careless and absent-minded at the same time is simply not foreseeable,” she writes. Her ruling quashed both the conviction and penalties.
Doug Firby, Sunshine Village’s associate director of communications, media and marketing, says the company has added signage and put in place a practice to ensure the ladder is always in the “down” position when entering the terminal.
An independent oh&s expert hired by the company came up with more than 100 recommendations, most of which have since been implemented, Firby reports.
“The problem is, can you anticipate the next bizarre and unimaginable set of circumstances? We’re trying to do that, but it’s complicated,” he says.
Chris Chodan, a spokesperson for Alberta Employment and Immigration in Edmonton, said in late August that department representatives were reviewing legal options in response to the appeal decision.
“For a potential danger to be foreseeable, there must at least be a reasonable prospect or expectation that it will arise,” Justice Bensler writes in her ruling.
Jeremy Warning, a lawyer with Heenan Blaikie LLP in Toronto, says foreseeability is “determined by assessing whether or not a reasonable person would have foreseen or viewed the workplace safety risk as something that required remedial intervention.” It is an integral part of the reasonable care aspect of due diligence, Warning says.
While this test is meant to provide an objective standard for determining foreseeability, the definition of “reasonable person” carries with it a certain amount of subjectivity.
That definition may change with oh&s experience and awareness. “If you have more sophisticated people setting the rules and safety measures in place, then it’s a case that they may be able to foresee different hazards,” Warning suggests.
That said, he adds the health and safety “legislation that exists across the country is meant to level the playing field, if you will, such that if everybody is abiding by the same standards, those are intended to minimize the risks.”
Kathleen Ryan, a lawyer with Davis LLP in Edmonton, says an employer has discharged its due diligence duty if it is determined a proper system was instituted and used correctly.
Indeed, both Justices Bensler and Delong found that the workers had been properly trained in the safe use of the equip- ment. “There is that element of human error that can be introduced to a workplace that sometimes the employer can’t control,” Ryan suggests.
A risk assessment is an integral part of any attempt to gauge what foreseeable hazards might emerge in the workplace, she notes. It involves considering potential hazards, estimating the likelihood of a particular hazard materializing, and determining the severity of the consequence if controls are absent, Ryan adds.
As Justice Bensler ruled, however, the benefit of hindsight cannot be applied to foreseeability. “We have to look at the events as the worker and the employer saw them that day, and judge them according to what we knew at the time,” Warning points out.
Beyond employer obligations, the case raises the question of individual accountability. That issue was tackled in the May, 2009 decision, R.v. Lonkar Well Testing Limited, by Justice Stephen Hillier of Alberta’s Court of Queen’s Bench. Like Sunshine Village, Lonkar Well Testing was appealing an oh&s conviction of having failed to ensure the protection of a worker.
The company was engaged in a sweet well operation when a piece of equipment malfunctioned and needed to be replaced. To prepare for that work, a company supervisor instructed Jonathan Audit, a 21-year-old employee, to remove 12 flange bolts from the equipment while the supervisor was away. The young worker was also told not to do any additional work until the supervisor came back.
Upon his return, the supervisor discovered Audit dead on the floor of the trailer where the equipment had been kept. The equipment had been moved, and a hematoma on Audit’s head suggested that he had fallen.
Hydrocarbons released by the equipment had stratified, leading to decreased oxygen at floor level. “The major contributing factor to his death was suffocation due to the low level of oxygen in the ambient air that he had been breathing,” Justice Hillier writes.
“In that case, the question was whether it was reasonably foreseeable for the employer to anticipate that the employee would depart from his training and express directions from his supervisor,” says David Myrol, a partner with McLennan Ross LLP in Edmonton and chair of the firm’s oh&s group.
Justice Hillier ruled “there was absolutely nothing to indicate that Audit would act alone and remove the remaining bolts on all the flanges,” suggesting the trial judge’s decision was based on hindsight. “Criticisms by the trial judge presuppose that [the supervisor] should have anticipated that his instructions would be disobeyed,” Justice Hillier notes.
In both the Sunshine Village and Lonkar Well Testing cases, what was unforeseeable was that workers would have been inattentive, as in the former case, or expressly disobey a supervisor, as in the latter, causing the safety systems in place to fail.
Jennifer Fabian, director of safety se
rvices at Saskatchewan’s Ministry of Labour Relations and Workplace Safety in Regina, suggests that external control systems are so very critical precisely because even careful workers can make mistakes.
“Once you’ve identified a hazard, what we promote is the priority of controls. The first priority is that you eliminate the hazard,” Fabian says. If this cannot be done, she recommends physical guarding to separate the worker from the hazard.
Brunnen does not expect the Sunshine Village verdict to have any significant influence on how employers view the reasonable care required to protect their workers. “You can only go so far or so high on the standard of care. You’ve done everything that’s quote-unquote reasonable and yet you still have an inexplicable moment,” he says. “You can’t legislate out human error,” Brunnen adds.
Warning notes that workers also have responsibilities in line with the internal responsibility system. “Every health and safety statute across the country does contain legal requirements for workers to protect themselves and not work in a manner that may endanger any other worker or person at the workplace,” he says.
Ryan, for her part, notes that “workers need to remember to apply their training every day.”
Says Myrol, “The courts are recognizing there’s a certain reality to workplaces and a limitation of the ability of people to predict the future.” He even suggests that the Sunshine Village case protects the interests of employers, as they will not be treated as legal guarantors of worker safety in any and all possible scenarios.
“It was a strong endorsement and a reassurance to employers that they wouldn’t be held to an impossibly high standard,” Myrol says of Justice Bensler’s ruling. “Anyone can connect the dots after the accident occurs.”
Myrol suggests, however, that provincial oh&s inspectors have a heightened responsibility to identify work-related hazards. “Their skill set allows them to identify that hazard more readily than even an employer may be able to identify,” he maintains.
But Brunnen points out that Sunshine Village’s operations had been regularly and routinely inspected, and their procedures had been approved. “They were probably more diligent than most chairlift operators, so… you can’t fault the inspectors for anything they’d done in advance,” he says.
Independent of the case, Fabian notes that safety officers in Saskatchewan will continue to perform their duties as they relate to foreseeability. This means “coaching employers on their duties and, secondly, when doing an investigation… to consider that foreseeability issue,” she says.
Ultimately, both Fabian and Ryan recommend that when health and safety policies are being developed, there should be multiple controls in place to provide support in the event that a system fails.
“Often, when accidents happen, it’s not just one thing going wrong, but it’s a series of things that all converge at the worst possible time, at the same time, with the worst possible outcome,” says Ryan.
She urges those who create safety systems to “try to develop them to the point of redundancy.”
In light of the appeal decision, Sunshine Village will not be donating $250,000 to the British Columbia community college. Rather, Firby says, the money will be invested in improvements and workplace practices that are “more likely to reduce the risk of fatality in the future.”
Emily Landau is editorial assistant of OHS CANADA.