The Alberta Court of Appeal just dismissed an employer’s appeal and confirmed that the employer did not do all that was reasonably practical in the circumstances to avoid the reasonably foreseeable risks that led to the fatal accident of its employee. The court noted that the fact that the employer would even consider operating a machine that no one had any familiarity with and without either its own operator or a proper set of written instructions in itself spoke volumes as to the lack of the employer’s due diligence in this matter. Therefore, the health and safety violations were upheld.
How did this happen?
An employee was involved in a fatal accident while working at a client appreciation event for his employer.
The employer, a technology company, planned its annual customer appreciation event to coincide with stampede celebrations. In fact, the employer got a hold of a calf roping machine to entertain partygoers.
The machine arrived and was not the actual machine that the employer ordered. It arrived without an operator and without written instructions. The employer then decided to figure out how the ride was to be operated. No one at the company had any experience with this machine.
The machine was designed to provide the rider with a calf roping experience from the seat of a stationary mechanical horse. Ultimately, it was clear that the machine was not functioning properly, but it was used anyway. Throughout the party, various technology employees of the employer had to fidget with the machine and tried to manually unlatch the hinge hook from a calf before the rider could trigger the calf properly. When the party was ready to wrap up, a few people wandered over to try the ride again, and it was at this point that a rider triggered the calf prematurely as one of the employees was trying to fix the hinge hook, and this led to the employee getting hit with a steel lever with significant force and velocity, striking him in the head and causing his death.
The employer was charged with two counts under the Occupational Health and Safety Act alleging that it failed to ensure the health and safety of its employees, and that all equipment used at a worksite would safely perform the function for which it was intended or designed.
Initially, the employer was acquitted of two charges under the Occupational Health and Safety Act after the trial judge found that all that could be reasonably done to avoid foreseeable risks had in fact been done and the danger that caused the employee’s death was only obvious with the benefit of hindsight.
However, the Crown appealed and was successful because the court found the trial judge’s verdict was inconsistent with the evidence.
In response, the employer appealed to the Court of Appeal.
The employer’s appeal was dismissed by the Court of Appeal based on the following:
- A finding that a verdict was unreasonable was subject to the standard of correctness, and the appellate court had to be right, as a matter of law, on the legal appreciation of the verdict as a reasonable one. The court could only interfere if the trial judge’s findings were plainly contradicted by the evidence or demonstratably incompatible with the evidence
- On appeal, the trial judge’s determination that the danger was foreseeable only with the benefit of hindsight was found to be incompatible with evidence relied on by the trial judge – the evidence that supported the finding was that a premature launch remained a possibility throughout the afternoon and procedures adopted (manually unhinging the latch hook) required the employees’ head to come in close proximity to the lever when manually releasing the hinge hook. Thus, the potential danger of an operator being struck during a premature release of the calf while reaching into the machine was a reasonably foreseeable event and was inconsistent with the trial judge’s ultimate conclusion
The trial judge’s conclusion was in fact inconsistent with the uncontradicted evidence that showed:
- The likelihood of a premature release of the remained throughout the day due to the sensitive release plate – in fact, it had done so several times throughout the day
- Visible marks on both the lever and the back of the horse along with the previous incident that day all suggested that the lever would be propelled forward with considerable force into the back of the machine if a premature release of the occurred before the hinge hook was detached
- The malfunctioning of the spring created additional hazards, as the operator had to take the added step of manually removing the hinge caulk from the back of the machine
- The procedures implemented anticipated that an operator would reach into the machine to manually disengage the hook
- That manoeuvre placed the operator’s had and body in close proximity to the lever
The court noted that the evidence supporting these facts were all accepted by the trial judge. The evidence was incompatible with the trial judge’s finding that the risk was only foreseeable with the benefit of hindsight.
What’s more, the court was also of the view that the trial judge made other conclusions that were inconsistent with the evidence, namely she commented throughout her judgment that the employer failed to appreciate that the machine was not intended to be operated in a manner that required the operator to manually detached the hinge hook and that this would not have been obvious without the operating instructions which this supplier failed to provide. However, it was clear that when the machine was initially being tested that the spring was too long and that the machine’s design was such that a properly sized retractor spring would automatically detach the hinge hook and negate the need for the operator to manually reaching and perform that function. This misapprehension of the evidence played a significant role in the trial judge’s analysis.
It was clear that the employer did not take sufficient steps and certainly did not do all those reasonably practicable in the circumstances to avoid the reasonably foreseeable risks. More specifically, the Court of Appeal agreed with the previous court that the danger created by having to manually reach in to the machine to remove the hinge hook was reasonably foreseeable in the circumstances, and the employer failed to take corrective steps in relation to the danger.
The court stated:
That (the employer) would even consider operating a machine that no one had any familiarity with and without either its own operator or a proper set of written instructions in itself speaks volumes as to the lack of its due diligence in this matter. This is particularly so given that the machine was going to be used by party goers who would be consuming alcohol”
Hence, the employer’s appeal was dismissed.
What can employers take from this case?
As can be seen from this case, employers have a significant responsibility when they are going to be introducing a new piece of equipment with which no one is familiar into a worksite or a work-related event where individuals will be drinking alcohol.
This was a party situation. The employer had to respect health and safety laws and ensure that it was doing all that was practicable in the circumstances to prevent injury to the employees and others at the party.
Respecting the law in this type of situation is likely to include employers remembering that the equipment must be accompanied with a proper demonstration, an operator or someone who will be trained to be the operator, written instructions, and anything else that is necessary to operate the equipment safely and prevent injuries of its users.
When employees and others including customers and clients attended a company party, there is a higher likelihood that things can get out of hand with the presence of alcohol. Employers are recommended to read this HRinfodesk article regarding responsibilities of employers during a company-sponsored event here (requires log-in).
Christina Catenacci BA, LLB, LLM
HRinfodesk, published by First Reference
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