Reference no: EM132825193

Thompson, an experienced operator of the bar bundler packager at ABC

Steel Co, noticed that bars had fallen into the basement of the packager. Contrary to his training and the employer's safety protocol, Thompson did not lock out the machine. Instead, he placed the machine on automatic and entered the basement area. To get there, he had to push open a self-closing swing gate which displayed a sign warning that the packager had to be "locked out" before entry. Similar signage was on the guard rail fence. Nonetheless, Thompson continued into the basement area; within moments, he was crushed to 3 death by a movable portion of the bundler.

The employer was charged with breaching section 25 of the Industrial Establishments regulation under the OHSA, which requires machines with nip hazards to have a guard to prevent access to the pinch point-the point where moving machinery parts are strong enough to pull someone in and injure them. The employer argued that it had done everything reasonable in the circumstances-employee training, a gate that closed automatically, and ample signage. It claimed that it is impossible to foresee and therefore guard against "reckless" employees who do the totally unexpected-even a locked gate would not have deterred a "determined and intentioned" employee like Thompson.

On the basis of these facts, answer the following questions:

a Is this a strict liability offence? If so, does the Ministry of Labour have to prove anything or does the entire burden of proof lie with the employer?

b. The employer may avoid liability if it shows that it exercised due diligence in attempting to carry out its duties. What is the standard of proof in making out a due diligence defence: "beyond a reasonable doubt" or "on a balance of probabilities"? Research what these two different standards of proof mean.

c. In light of all the circumstances, in your view did the employer exercise due diligence in the steps it took to protect employees from this hazard? If not, what additional steps should it have taken?