7/12/2005 Canadian Occupational Health & Safety News
July 11, 2005 -- Halifax (Canadian OH&S News) -- A recent Nova Scotia Supreme Court decision underscores the need for employers to keep workplaces in a safe condition.
Justice Gerald Moir ruled in favour of an injured worker's lawsuit against Halifax Regional Municipality (HRM), awarding $159,832 in damages from the city.
In September 1998, Frank Cheevers had been subcontracted to work in a motor control room at HRM's Woodside sewage treatment plant.
In an area contaminated with highly conductive silver plate dust, he suffered severe burns in an electrical explosion and fire. The presence of the silver, which had flaked off components inside an enclosed area of the motor control centre, went unnoticed and was allowed to build up over several years.
"When the cleanup was done, even the people from HRM admitted that it was in a terrible condition - conditions that some people who'd been in the business for 25 and 30 years had never seen before," says Devin Maxwell, one of Cheevers' lawyers.
"There was no dispute that the place was in bad shape. The only question was whether there was an obligation on the part of the HRM to keep it in a better condition."
HRM "made no inspections [and] as a result, dust accumulated," Moir wrote in his decision. "The dust was conductive. It caused arcing that lead to three powerful shorts from phase to ground. The intense heat reflecting from those powerful shorts burned Mr Cheevers severely."
(Notwithstanding those injuries, the Nova Scotia labour department did not find fault with the company. Investigators concluded that Cheevers did not de-energize the switch he was working on, and was not wearing proper equipment, department spokesman Bill Turpin says. In addition, as a subcontractor who was the owner of the company doing the subcontracting work, "he was the person most in control of the work." Cheevers' lawyers dispute the provincial investigation's finding that the area being worked on had not been de-energized. They also argue that, for the close work Cheevers was doing, it was impossible for him to wear the type of protective gloves the labour department expected him to wear.)
Moir ruled that although Cheevers was not an employee, HRM owed him a duty of care, and that responsibility included "reasonably regular" inspection and cleaning of the motor control room.
"The HRM had what they were calling a corrective maintenance program, so that if something broke down, they would call the appropriate repair person to come in and fix it," says Maxwell.
The judge ruled that standard of care was inadequate, even though it may have been common practice.
Dangers called for higher standard of care Court heard that a standard of "preventive" maintenance is usually practised in industry, in provincially or federally operated workplaces, and at sea. HRM pointed out that some components of the Woodside plant, such as the pumps and settling tank, were on scheduled maintenance and service.
Moir noted, however, that "it was not the practice to perform preventive maintenance in motor control rooms at sewage treatment plants in Nova Scotia or at smaller commercial operators such as saw mills or at similar plants operated by municipalities."
But Moir accepted the argument by Cheevers' lawyers that the appropriate standard of care should be determined by industry best practices.
By way of example, the Institute of Electrical and Electronics Engineers' standard of preventive maintenance was cited. The document spells out the need to clean contaminants, tighten loose electrical connections, lubricate mechanical parts, and inspect and test the ratings and settings for electrical protective devices.
"When Mr Cheevers was hurt, some segments of industry were leading the way and some were lagging behind... the law ought not to lag behind with them," Moir wrote. "It takes no expert to see the dangers associated with exposed conductors live to 600 volts of electricity."
The Nova Scotia case demonstrates that employers have an obligation to have a "reasonable" program of inspection to keep the workplace in a certain condition, Maxwell says. "If you bring in a subcontractor to do some work, and he or she gets injured because you don't have a reasonable maintenance program in place, then this is a definitely a case that somebody can point to and say, 'Listen, you had an obligation to keep this in better condition.'"
At the time of the accident, Cheevers was an experienced electrician. Because he owned his own company and he was paying himself by way of dividends as opposed to a salary, he didn't fit within the definition of a worker under the Workers' Compensation Act. Maxwell says the worker made an early application for workers' compensation "not because he thought he would get anything, but because his insurance company told him that he had to exhaust all other avenues before getting something from them."
When his workers' comp claim was denied, HRM appealed, shortly before the start of the trial (In Nova Scotia, any interested party can appeal a WCB decision). "They appealed his decision on the basis that he should have received it, [thereby] precluding his claim against them," explains Maxwell.
The appeal was denied, and Cheevers' lawsuit went to trial.
Michael Dunphy, HRM's lawyer, says no decision has been made yet on whether the decision will be appealed to the Nova Scotia Court of Appeal.