In 1835, Charles Priestley, a minor working for the butcher Thomas Fowler, was crushed by several hundred pounds of mutton when the wagon in which he was riding broke. Priestley's thigh was broken and his shoulder dislocated. The young man had been riding in the wagon to help take a load of meat to Buckden and London. When the wagon was loaded up, his colleague William Beeton complained to Fowler that it was overloaded and unsafe. Fowler scoffed at this judgment and ordered his two servants to depart.
In 1836 Charles Priestley's father sued Fowler for compensation for his son's injuries and was successful at first instance. The defendant managed to secure an arrest of judgment and the case was heard again in 1837 before the Court of Exchequer. There, Abinger C.B. in deciding the case, suggested that a master could hardly be liable for injuries sustained for causes that were, before the accident, as apparent to the worker as they were to the employer.
Through a rather circuitous route (From Exchequer across the Atlantic to Massachusetts, then back to the House of Lords and a Scottish case, to the common law in general) this decision led to the enunciation of three complete defences for employers sued by injured workers or the families of workers killed on the job: fellow servant (or common employment), voluntary assumption of risk and contributory negligence. An employer could avoid all liability if it could demonstrate that the accident was caused by the servant him or herself, by another employee, or that the accident fell within a range of predictable accidents for the workplace. These rules were radically different than those that applied to third parties injured by an accident in a workplace: such victims could usually successfully sue employers.
There is much that can be said about Priestley v. Fowler (the decision was reported in several places: [1835-42] All ER Rep 449; 3 M & W 1; Murp & H 305; 7 LJ Ex 42; 1 Jur 987; 150 ER 1030. Look here for one recent and freely available discussion.). Today, however, is Worker's Memorial Day, dedicated to remembering those workers who die in workplace accidents or as a result of workplace illnesses and injuries. So let us look at one lingering line of thought from Priestley v. Fowler to the present.
In his decision, Abinger said "in most of the cases in which danger may be incurred, if not in all, [the injured servant] is just as likely to be acquainted with the probability and extent of it as the master.... In fact, to allow this sort of action to prevail would be an encouragement to the servant to omit that diligence and caution which he is in duty bound to exercise on the behalf of his master, to protect him against the misconduct or negligence of others who serve him, and which diligence and caution, while they protect the master, are much better security against any injury the servant may sustain by the negligence of others engaged under the same master, than any recourse against his master for damages could possibly afford."
At heart, Abinger is convinced that the workplace is made up of equals: employee and employer are but two people equally capable of understanding the risks and preventing accidents. Over time this opinion shifted. By 1904, the Supreme Court of Canada was finding that in fact employees had a much better chance of determining the risks and preventing injuries than employers, who were often removed from the workplace by several levels of management (see Canada Woollen Mills v. Traplin, 35 S.C.R. 424). Essentially: workplaceinjuries are the workers' responsibility and fault.
This belief remains strong right to the present: witness, for example, the last two sets of advertisement campaigns by Work Safe Alberta. You can watch 2008's "Bloody Lucky" campaign here. Inspired by Hostel and its ilk, these ads show in graphic detail how being a worker with a bad attitude of one sort or another can result in a lost finger, a mangled foot, a head melting away or worse. This year's campaign, "Before it's an injury" feature buckets, ladders and nails out to kill. In either case, though, the person responsible for the accident is the careless worker. Employers are no where to be seen: they have no responsibility for the accident at work, even though in each case the employer could have ensured that the situation that leads to the accident does not exist.
These campaigns are made worse by this simple fact: unlike almost every jurisdiction in Canada, in Alberta there is no provision in the Occupational Health and Safety Act for mandatory Joint Health and Safety committees in the workplace, except where the minister specifically requires it. The Government of Alberta simultaneously tells workers it is their fault that accidents happen and avoids requiring employers to actually involve those same workers in the health and safety planning of their workplaces. Rather, workplace safety planning remains, at law, completely within management's rights.
While blaming the worker for accidents is fine, as the Auditor General pointed out a few weeks ago, the government is reticent to actually hold WHS serial offender employers responsible. The Minister of Employment asserts it would be illegal for him to identify these employers who have repeatedly broken health and safety law and endangered their workers.
The government, however, has managed to save farm workers from the dilemma posed by its policies: Alberta is one of only two provinces to continue to exclude farm workers from even the meagre protections of its Occupational Health and Safety Act.
The Government of Alberta is not alone in blaming workers and absolving employers for workplace deaths. In 2009 the Alberta Court of Queen's Bench took a deviant turn from Canadian common law when it absolved Lonkar Well Testing Limited in the death of 21 year old Jonathan Audit. Audit died of asphyxiation: he was found by his supervisor on the floor of a trailer with a head injury and in a space deprived of oxygen. At trial for breach of the OHSA, the employer was held liable because the supervisor did not provide Audit with "a very specific exhortation or warning abut the nature of the danger and the risk of death," "prepar[e] a hazard assessment," nor provide Audit with appropriate safety equipment (in this case a gas monitor). In ruling in favour of Lonkar on appeal, Mr. Justice Hillier rejected each of these on the grounds that the actual circumstances of Audit's death are unknown and so it would be "very speculative that [any]... would have made any difference in terms of the outcome" [69]. Hillier's finding comes down to this: where the circumstances that cause the death are unknown and where all evidence provided suggests that the employee was a good worker following instructions, his workplace death must obviously be caused by his own "truly bizarre" acts and the employer should bear no responsibility.
We in Alberta should stop today and think about all the mistaken, distracted, and stupid people out there who injure and kill themselves on the job (one worker killed herself every 3 days in 2009 in Alberta: a significant improvement over last year!). In fact, we should remember that according to the Alberta Cancer Board, it seems likely that in 2006 somewhere between 228 and 1140 workers died from cancers they thoughtlessly acquired on the job (although in the same year Workplace Health and Safety reported only 54 workplace-related illness deaths). Lord Abinger would be happy that lawmakers in this province know who to blame.
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