By Glenn S. Demby, Esq.

Analyzing the hazards associated with particular jobs and writing safe work procedures for performing those tasks can help prevent accidents. But simply having a procedure doesn't help if the procedure isn't followed. In fact, from a liability perspective, developing a procedure that isn't implemented is a bigger risk than not having a procedure at all, especially if failure to implement the procedure causes an accident.

Company Fined $75,000 For Not Following Its Own Procedure

An Ontario mining company learned this lesson the hard way. A miner working alone 1,768 metres (5,800 feet) below ground was hit on the leg by a large rock that came loose from a side wall. Although he was able to cut a lamp cord and use it to slow the bleeding, the miner had no radio and the nearest phone was 488 metres (more than 500 yards) away. After more than three hours, the miner was finally discovered and taken to the hospital.

The miner shouldn't have had to wait so long for help. The company's written safety procedures required checking on miners working alone underground at least every two hours unless radio contact had been established. But nobody had realized that the miner was working alone. As a result, the procedure wasn't followed. So, even though the company had a good safety record, it ended up pleading guilty to violating the Ontario OHS law and was fined $75,000 [R. v. Falconbridge Ltd., (2001) 54 W.C.B. (2d) 201 (Ont. Ct. (Prov. Div.)] .

It Happens in America Too

Although the Falconbridge case took place in Canada, the exact same principles apply in the U.S. For example, see Aggregate Industries, OSHA Region 1, Release No. BOS 2003-090, May 12, 2003, in which a Massachusetts construction company was fined $49,000 for failure to follow its own traffic control practices after four workers got hit by a vehicle while removing cones and signs from a highway work zone.

Why Failing to Follow Your Own Procedures Is So Serious

Although the Ontario and Massachusetts companies may have made other mistakes, not effectively implementing their own safety procedures was probably the one that caused their lawyers the most grief. Understanding why might help you keep your company from making the same mistake.

Accidents happen - even at companies that try hard to prevent them. Once accidents occur the question becomes whether the company is going to be held legally responsible. To answer that question, investigators, prosecutors, judges and juries must compare what a company in its position, knowing what it knew, should have done and what it actually did do.

That means they need a standard against which to judge the company's conduct. Sometimes the law furnishes that standard. For example, the law might require that miners working alone be checked at least once an hour.

But, when there's nothing in the law addressing the exact situation of the case, the standard has to come from somewhere else - like the company's own safe work procedures. After all, these policies and procedures represent what the company considers safe and prudent. So it's fair to conclude that a company that doesn't live up to its own standards is legally responsible for the consequences.

The Bottom Line

If you establish a safe work procedure, you'd better make sure it's followed. If you don't and an accident occurs, you'll be easy pickings for trial lawyers, prosecutors and members of the media.

The Canadian Perspective

This story works for readers on both sides of the border. It even uses a case from Ontario to illustrate the principles involved.

THE WORLD OF SAFETY

CHILE

Norm Keith - bio

By Norm Keith, B.A., LL.B., CRSP

Chile was the first country in the western hemisphere to create a social security system. Unfortunately, its financial security net seems to be much stronger than its workplace health and safety system, at least judging from the lack of enforcement activity. On the other hand, the unavailability of statistics about fatal and non-fatal injuries precludes a clear assessment of the risks faced by Chilean workers.

Health & Safety Profile: Chile

• Labor Force: 6 million
• Total Accidents: Not available
• Total Fatalities: Not available
• GDP Per Capita: $9,900
• Life Expectancy: 76.4 years
• Govt. Type: Democratic Republic
• OHS Law: OHS Statute
• Enforcement: Minimal regulatory enforcement. No criminal enforcement.

About Norm Keith

Norm Keith, BA, LL.B., CRSP, is a partner in Gowlings' Employment and Labour Group, specializing in occupational health and safety law, workers' compensation, privacy law, labour and employment law, and alternate dispute resolution. He has extensive experience with wrongful dismissal, human rights, labour arbitration, judicial reviews, Ontario Labour Relation Board cases and fiduciary duty lawsuits.

To view his bio, click here. You can contact Norm by email here or by phone at (416) 862-5699.

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