On-Site Magazine

Who is responsible for ensuring the safety of a construction site?

By Stuart Hankinson and Ben Clarke   

Construction Health & Safety Law

Curb under construction.

PHOTO: Adobe Stock/alisonhancock

It is commonly known that owners and contractors owe a duty to keep their employees safe while on the job. In British Columbia, for example, the Workers Compensation Act, RSBC 2019 c. 1 imposes obligations on employers to “ensure the health and safety of all workers working for that employer and any other workers present at a workplace in which that employer’s work is being carried out.”

Stuart Hankinson

Stuart Hankinson. (Submitted photo.)

If a worker is injured while working on a construction site, their recourse is to make a claim for compensation in accordance with the procedures set out in the Workers Compensation Act.

Owners and contractors may also owe duties to non-workers who enter construction sites pursuant to provincial occupier’s liability legislation, however. In cases involving injuries or accidents that occur at construction sites, the court is often required to determine which party, or parties, can be characterised as an “occupier” and whether the occupier or occupiers met their statutory duty to maintain the safety and security of the premises.

These issues were canvassed in Botosh v Ottawa (City), 2013 ONSC 5418, in which the court held that a general contractor may be an occupier under the Occupiers Liability Act, RSO 1990 c. O.2, and be liable for injuries which occur on its site even if it is not in physical possession of the site at the time of the accident.

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Ben Clarke

Ben Clarke. (Submitted photo.)

On November 8, 2003, the plaintiff was injured when she tripped over an unfinished concrete gutter and curb, which was part of a municipal road upgrade project in Ottawa. The plaintiff brought an action for damages against the City of Ottawa, as well as the general contractor, Greenbelt Construction Company Ltd. and the paving subcontractor, Dibblee Construction Limited and Lafarge Paving and Construction Limited (collectively referenced in the case as Dibblee).

The court first considered whether the condition of the curb gave rise to a risk of injury to the plaintiff. The court accepted that there was height differential of approximately 1 1/2 inches between the road surface and the concrete gutter at the time of the accident and that no temporary ramping had been installed to nullify this height gap. Moreover, no warning signage was installed in the vicinity of the curb to warn pedestrians of the curb.

The court found that the curb created a tripping hazard which was not sufficiently mitigated by the defendants:

53 One of the purposes of ramping at intersections is to ensure that those with disabilities or with accessibility needs are able to safely negotiate crossing streets. Therefore a gap of 1.5 inches between the roadway and the depressed gutter is a hazard when under normal conditions there would have been virtually no height differential. This is a situation that required either temporary ramping to be installed immediately if there was to be a significant delay before the final pour of asphalt as in this case, or alternatively, sufficient warning to pedestrians of the hazard, such as the placing of signs and markers such as orange paint to individually identify potential hazards.

55 I find that it was foreseeable that without temporary ramping in place and without some warning in the immediate vicinity of the depressed sidewalk to indicate the roadway/sidewalk was incomplete, a vertical gap of 1.5 inches at the intersection of St. Patrick and Dalhousie Streets was a tripping hazard.

56 Ms. Botosh has satisfied the test that a condition of non-repair existed and that it was this non-repair that caused her to trip and fall. The defendants knew or ought to have known about the state of non-repair and failed to take appropriate steps to rectify that condition.

Having found the defendants liable for the plaintiff’s injuries, the court then turned to the apportionment of liability between the defendants. The plaintiff argued that all three defendants were “co-occupiers” and should share liability equally. Greenbelt and the city contended that they were not occupiers of the site and that Dibblee was solely liable for the plaintiff’s injuries, as it had primary control of the site at the time of the accident.

The Ontario Occupier’s Liability Act defines occupiers as: “(a) Persons in physical possession of a premises, or (b) A person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises.”

Occupiers owe an affirmative duty to take reasonable care to see that persons entering on to the premises are reasonably safe while on the premises. Where damage is caused by an independent contractor, the owner or general contractor is obligated to supervise the safety practices of the independent contractor to ensure that the premises and activities undertaken thereon are reasonably safe.

In cases involving multiple occupiers, the courts have held that one occupier may not avoid its statutory obligations by ignoring the deficient maintenance practices of a co-occupier.

In this case, Greenbelt turned the site over to Dibblee on September 30, 2003. There was no evidence of any Greenbelt employees attending the site after that date. Representatives of Dibblee testified at trial that Dibblee did not require or expert to receive supervision from Greenbelt after taking control of the premises. The evidence at trial also established that Dibblee managed certain site safety duties, such as the identification of hazards by placing pylons and orange markings around the site.

Despite this, as general contractor, Greenbelt retained its responsibility to supervise and manage the progress of Dibblee’s work and to ensure that the work was carried out in a safe and timely manner. Greenbelt and the city were also responsible for signage and traffic management around the site.

In view of the above, the court ultimately held that that notwithstanding the fact that primary control of the site belonged to Dibblee, Greenbelt and the city continued to be occupiers due to their ongoing obligations to manage and supervise the site.

Accordingly, 50 per cent of the liability for the plaintiff’s injuries was apportioned to Dibblee, while the city and Greenbelt were each found to be 25 per cent liable.

Conclusions

Botosh confirms that the Occupiers Liability Act imposes duties on parties who are in physical control, and/or who exert organizational or managerial control over a worksite. As a result, owners and contractors may not turn a blind eye to the unsafe practices of their subcontractors and may be liable for any accidents that occur as a result of those practices.

For that reason, it is prudent to establish clear safety policies for the condition and activities undertaken on a construction site, as well as to perform regular safety meetings and inspections with the party in physical control of the premises. Taking these reasonable steps to ensure the safety of the premises will lessen the likelihood of on-site accidents, as well as minimize the owner’s and general contractor’s risk of liability in the event an accident does occur.

Botosh was decided pursuant to the Ontario Occupiers Liability Act. However, the similarity of provincial occupier liability legislation in jurisdictions like Ontario, British Columbia, Alberta, and Nova Scotia, to name a few, means that the principles set out in this case are likely to apply across Canada.

 

Stuart Hankinson is a partner in the Construction and Infrastructure Practice Group at Singleton Urquhart Reynolds Vogel LLP. Ben Clarke is an associate in the Commercial Litigation, Construction, Insurance and Workplace Law Practice Groups at Singleton Urquhart Reynolds Vogel LLP.

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