Consider the following situation: A worker sticks his arm into the opening of a welding machine and reaches into the tunnel to feel for a flaw in the rail inside. The machine’s clamps, which weigh over 120 tonnes, come down and crush his fingers. After the incident, the supervisor looks into the tunnel and is surprised to see how close the clamps are to the tunnel’s entrance. The rail company is charged with failing to properly guard the welding machine as required by OHS regulations.

Is the Company Liable for a Machine Guarding Violation?

1. No. A guard wasn’t necessary because common sense should have told the worker not to stick his hand into the tunnel.
2. Yes, but only if the welding machine’s manufacturer recommended the use of a guard.
3. No, because the company didn’t know that the clamp area posed a hazard that required a guard.
4. Yes, because the clamp area posed a foreseeable hazard that the company should have considered and addressed.

ANSWER

The company is liable because it should have considered the clamp area, realized that it posed a hazard to workers and taken appropriate steps to guard the machine.

EXPLANATION

This hypothetical is based on a case from Manitoba in which a rail company was charged with violating the federal Canada Labour Code and Canada Safety and Health Regulations by failing to guard the clamp area of a welding machine. The company argued that it wasn’t liable because the hazard posed by the clamp wasn’t foreseeable.

The court saw things differently. It explained that in determining if a company exercised reasonable care, the first issue is whether the hazard was reasonably foreseeable. If so, the inquiry turns to whether the company took reasonable steps to address it. In this case, there was no evidence that the company ever considered the clamp area at all. The court said, “Unforeseeability cannot assist the defendant here when the clamp area was totally ignored.” The clamps were very heavy and readily accessible by someone sticking a hand into the tunnel. Thus, it was reasonably foreseeable that the clamp area posed a hazard to workers and the company should have taken steps to restrict access to that area.

WHY WRONG ANSWERS ARE WRONG

A is wrong because “common sense” can’t take the place of a legally required machine guard. True, it was foolish for the worker to reach into a dark tunnel in which he knew heavy clamps were located. But workers don’t always exercise common sense or comply with safety policies and rules. That’s why the law requires the use of physical guards and other engineering controls to prevent incidents that can occur when workers—such as the one in this situation—exercise poor judgment.

B is wrong because the manufacturer’s recommendations, while useful, don’t determine what a company is legally required to do. Even if the manufacturer of the welding machine didn’t recommend the use of a guard for the clamp area, that omission wouldn’t relieve the company of its duty under the OHS regulations to guard the machine. Of course, a company’s failure to take a precaution that the manufacturer does recommend would be evidence that the risk was foreseeable and the company failed to take reasonable steps to prevent it.

C is wrong because what matters in a situation like this one is not what the company actually knew but what it should have known. The question, in other words, is would a reasonable person in the company’s position have realized that the clamp area posed a possible threat to workers? In this case, the answer is clearly yes. The clamps were heavy and so the risk of severe injury from physical contact with them was very high. And it was obvious from simply looking into the tunnel that the clamps were readily reachable by hand. So the company should have known that the clamp area was a hazard and taken steps to address it.

Citation: R. v. Canadian National Railway Company, [2003] CanLII  3056 (MB P.C.), June 20, 2003

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