Municipal Risk Management

A recent BC court case confirmed my belief that inadequate design should not be managed with "cover your ass" signage. Some of the quotes below serve as an excellent case study for understanding the relationship between a municipal engineering design, the designer and the municipality regarding safety and risk management.

The case, Lovely v Kamloops (2009 BCSC 1359) – details an injury sustained at a recently designed waste transfer station in Kamloops and the investigation into some of the safety elements in the design. Ultimately, the municipality and the design engineers were each deemed partly responsible (55% / 35%) for the injuries sustained, while the plaintiff was deemed to be 10% responsible and the contracted Transfer Station Operator was not deemed at all responsible.

[114] The test is not “whether anything could have been done to prevent the injury using 20/20 hindsight, but rather whether the steps taken by the occupier were reasonable in all the circumstances”: Duddle v. Vernon (City), 2004 BCCA 390

[115] In Arkesteyn v. Burgess, [1989] B.C.J. No. 264 (S.C.) the court identified four factors that may be considered in deciding whether an occupier has fulfilled his or her duty under the legislation. These were: whether there was an unusual danger (this was said to be the first and most important factor); whether there were posted warning signs; the ease or difficulty and the expense with which the unusual danger could have been remedied; and the prior record of safe usage of the premises.

[117] Niblock v. Pacific National Exhibition (1981), 30 B.C.L.R. 20 (S.C.) is one of few cases in which design of a facility and not maintenance of the premises is at issue, although the issue is not explicitly framed this way in the case. In Niblock, the plaintiff, who had had a considerable amount of alcohol to drink, was injured when he tripped over a thigh-high guardrail going down a set of stairs. The Court concluded that the railing acted as a trap, with the potential to cause someone to somersault over it, and thus constituted a foreseeable risk. Despite the plaintiff?s possible inebriation at the time, the defendant was found 75% liable for his injuries.

[119]… "in circumstances where an injured party may not have been completely vigilent in guarding against harm, a defendent who fails to take appropriate action regarding a foreseeable risk may be found liable."

[134] The risk of serious harm to the plaintiff was reasonably foreseeable. This was amply established… [141] The Transfer Station is open to all adult members of the public. There are no minimum physical requirements for users to meet such as sense of balance, weight, height, vision, age, agility, or strength… [150] None of the members of the City?s project team were experienced in the design or operation of a transfer station…

[155] Despite the limited experience of the project team, when faced with the “toughest” question of all, namely, whether to install fall protection, it did not seek to consult the City?s Risk Management or Safety departments, which specifically focussed on safety and risk matters or to seek a formal assessment from Stantec or any other resource having some expertise on the topic.

[159] No assessment was conducted by the City on the impact of its decisions on safety either when it elected to not have guardrails or to have the bins lower than the platform or later when it decided to no longer employ the chains which was the only feature on the unloading platform that could be considered fall protection.

[163] The City?s argument that it took reasonable care because of its retention of Stantec and its reliance upon its advice does not absolve it of liability. While it is a factor to be considered, the City knew that Stantec had limited experience and expertise in transfer station design. The question of whether to install fall protection for the public is not confined to a technical question requiring in special knowledge but more to do with common sense. Further, the City can be characterized as sophisticated given that it is a civic government with considerable internal resources. In the circumstances, the City cannot find refuge in a reliance argument. Regardless of any argument based on reliance upon a professional, it should have been apparent to the City project members that an unloading platform with a drop in excess of 2.5 metres (8 feet) and without warning as to the edge or a warning to remain back or any physical barriers to arrest a person's loss of balance, was an unreasonable risk given the acknowledged fall risk and related serious potential consequences.

[187] It is apparent that little investigation into safety features for the Transfer Station was conducted by the Stantec…

[196] Based on the evidence before me, there is no indication that Mr. Lovely was reckless or that he engaged inappropriate behaviour.

Published by Mike Thomas

Mike Thomas P.Eng. ENV SP, is the author of and Director of Engineering at the City of Revelstoke in the Interior of British Columbia, Canada.