When an accident occurs, the Employer often considers the possibility of using a due diligence defence. A due diligence defence is available if the defence can establish on a balance of probabilities that every precaution reasonable in the circumstance was taken. This defence has been codified in Section 66 (3) (b) of the Occupational Health and Safety Act. Foresee-ability of the hazard is part of the analysis required to determine if the defence has established a due diligence defence.
The Standard for due diligence is very high because it states that all ‘reasonable’ measures must be taken. CSA Z432-04 and other international Standards for machine guarding are used to establish the baselines for ‘reasonable’ precautions that an Employer can/should take. When it comes to foreseeability, the test is also very conservative. A judge is likely to say “The Employer should have foreseen the hazard because there is a moving part in the machine.”
If you are an Employer who:
Doesn’t know what should / shouldn’t be guarded
Doesn’t believe that there is a practical guarding solution for a particular machine or process
Doesn’t understand which Regulations & Standards apply to a particular machine/process
Is concerned that the audit process will immediately expose them to liability and bring the Authorities’ attention to their company *
Contact HITE Engineering for a consultation at your facility. Have us demonstrate how you can run a safe manufacturing operation without impacting profitability.
* As professional engineers, we are ethically bound to protect the public and have a duty to report, but it is also against our professional standards to go directly to the Authorities. Employers are entitled to consider factors outside of engineering such as the cost of taking corrective actions when making decisions. In the same way that patients are entitled to refuse treatment or a lawyer’s client is entitled to go to trial rather than take a plea bargain, the final decision on what course of action to take does not rest with the professional engineer. Let HITE Engineering provide you with a confidential report identifying immediate and severe risks to worker safety as well as moderate and minimal risks. It is very common to see companies implement an action plan to address the moderate and minimal risks over a period of time with budgetary constraints.
