WorkSafeBC report on Toba Inlet 2009 death at Kiewit project

The ever continuing story of Sam Fitzpatricks's death at the Toba/Montrose hydro power project.

Kiewit was fined 250,000 dollars for being negligent in the handling and coordination of the safety programs, lack of proper rock scaling and poor supervision of workers in a dangerous environment.

Kiewit appealed the fine, and lost. They appealed a 2nd time and Sam's dad fought back through the Workers Advisory office. The second appeal went to a tribunal panel.

On March 16/2013, the panel used these words to describe the company .... "wantonly reckless, recklessly negligent and guilty of gross negligence"

However...despite the excellent work of the lead WorkSafe investigator, and strong and clear language used to describe the situation at the Toba site....the panel could not see enough evidence to prove that the rock that rolled down the hill and killed Sam, was actually generated by the actions of the project.

Not one, but two excavators were working above the hand drillers, on a 35% slope...in clear violation of the 12 hr old ban on machines working above other crews.

The tribunal panel ( WCAT ) reduced the fine from 250,000 dollars....down to less than 100,000 dollars ( 5 minutes of income for a 10 billion dollar a year company )

Brian Fitzpatrick has hired a lawyer to work on a judicial review to try and introduce new evidence, and get the issue of the rock cleared up.

Here is the WCB report...it's long and sometimes hard to follow...but worth your time. There is a lot to learn from this incident. ( I refuse to call it an "accident" )
http://thetyee.ca/Documents/2013/04/07/Toba Inlet Worksafe Report.pdf

Here is an excellent TV show that documented some of the activities at the Toba project. Sam and his brother Arlen are featured.

Mega Builders: Peak Power http://ustre.am/:1bHs2

This week, Brian and I will be learning about "crowdfunding" as a way to pay for his legal fees. Brian is not suing anyone....just looking for justice and the right answer.

Thanks for the update. I have been following this on HEF since it was first posted but never commented.... I really never had the words

THEY REDUCED THE F****** FINE!?!?!?!

Like it didn't happen or something, or time makes it less of an offense or something?

....not like this is the first time a rock has (unexpectedly)been pried loose and sent down from above on a Kiewit job though, eh?

The twisted parts of the big company public relations game.... have the Toba project listed as winning awards for being "green and efficient"....and Kiewit touts the job as coming in ahead of schedule.

The fact that the project produced casualties like the Russian front seem to have dropped from the corporate newsletters.

The Toba/Montrose site had a rockslide in Dec/2012 that took out approx. 1000 ft of the penstock pipe. I haven't heard whether or not the rock slide originated from the existing rock cut...or came from above the previously blasted area.

I don't know if Kiewit is going in to repair it or not...or if it is warranty work or insurance.

Get a load of this video....note the photo of the Pacific Coastal Grumman Goose

Everyone patting themselves on the back for a job well done.

http://youtu.be/_eIZdbcrPfI

Here is radio interview with Sam Fitzpatrick's dad...Brian Fitzpatrick. He discusses the accident that killed his son at the Kiewit Toba Inlet project.

http://rabble.ca/podcasts/shows/redeye/2013/04/cutting-corners-on-safety-to-blame-death-worker

Here are a few excerpts from the the WCAT tribunal decision. ( the result of Kiewit's 2nd appeal ) this is only a small section of the decision.


[110] Further, some workers, as in the case of the young worker, would be
wearing hearing protection and carrying out loud work such that at times a
worker might not be able to hear a verbal warning to escape from an
approaching rock. Finally, the employer is experienced in this type of work.
It ought to be well aware of its obligation to control the risk of boulders
and debris rolling down a slope that is subject to such extensive blasting
and drilling operations.





[111] In these circumstances, we would describe it as "heedless," "wanton,"
"extreme," "gross," and "highly irresponsible" for the employer to have
known that there was a potential for rocks to roll through the worksite but
not take adequate steps to contain this risk by way of a detailed and
carefully monitored scaling program.



....







That is not the end of the analysis. Having concluded that the employer
engaged with reckless disregard in a high risk safety contravention, we must
consider the last requirement for a presidential penalty: causation. Here,
as already noted, we are not persuaded that the rock that killed the young
worker was a blasted rock or some other kind of rock that should have been
controlled through effective scaling activities. It is possible that the
rock that killed the worker was within the worksite. However, it is equally
possible that the rock came from some other location away from the worksite
and outside of the employer's scaling responsibility.





[115] Because we are unable to find on a balance of probabilities where the
rock came from or whether it would have been controlled by adequate scaling,
we cannot conclude that the worker's death resulted from that safety
violation. It follows that, notwithstanding the

employer's misconduct in this case, all the requirements for a presidential
penalty are not satisfied and we must therefore cancel the presidential
penalty against the employer. We turn now to consider whether some other
type of penalty is warranted.





The employer's indication that a Category A penalty is warranted in this
case constitutes an admission that it acted without due diligence. Even if
the employer were not admitting that to be the case, we would have been
prepared to make that finding. We note in this regard that the notion of due
diligence is well understood and demands not merely an absence of negligence
but also the more rigorous obligation to actively take all reasonable steps
to ensure safety contraventions do not occur.

Brian Fitzpatrick ( Sam's dad ) in a May 2013 Cable TV interview with David Berner about the Toba incident and Kiewit

http://youtu.be/7L1OPJXyUrQ

New TV interview on Global TV and article from May 13/2013 Brian talks about the incident that killed Sam, and about Kiewit

http://globalnews.ca/news/558511/powell-river-father-takes-on-kiewit-following-death-of-his-son/

So is it done now Mike?

Hi Simon...nope not done.

It went like this.
WorkSafe levied the fine of 250,000 bucks.
Kiewit appealed and lost
Kiewit appealed a 2nd and last allowable time...and the result was a mixed bag...harsh language about the actions of the company and it's management.

The WCAT ( WorkSafe tribunal ) did not see enough evidence to prove that the rock that killed Sam originated on the jobsite....so the fine was reduced to less than 100,000 bucks.

We thought that we had that part covered, but apparently not good enough.

Next

Brian is asking for a judicial review of the WCAT decision. He has to pay for that himself.
Very shortly we will have a crowdfunding drive setup to raise 22,000 dollars to pay for legal costs, expert opinions etc.

This is just to get the right answer in this case.

If we fail to get a good and proper result in this case of obvious system wide disregard for worker safety on that project...then any case that comes after has no hope of getting justice.

Dust off you wallet, Simon...I'll be a knockin' on your door.

The fatality rate at the Toba project including the Grumman Goose plane crash and Sam's death was 2.66% ( assuming 300 people total on the project )

If you want to not count the pilot...it's still 2.33% of the crew getting killed.

In Iraq in 2007 the US soldier casualty rate spiked to .07 %...

In 2009, the year that Sam was killed, the US soldier casualty rate in Iraq was .012%...pretty much safe as mother's milk.

Amazing.... the number of Kiewit managers at the Toba project went on to get promotions after running such a deadly job.

CBC radio documentary on work place safety in the eyes of the federal government...and the Westray law ( Canada )

http://www.cbc.ca/news/canada/ottawa/story/2013/06/04/ottawa-boiler-explosion-charges-should-have-been-laid-against-company.html

this is just a load of S***, a man died, while working under excavators that were not supposed to working above men on the slope...... and the company gets off more or less scot free.

Well Phil...Sam Fitzpatrick's dad, Brian is working everyday to get the right answer in this story.

He has been in touch with lawyers, criminology professors, union leaders, members of the government in power and the opposition.

Everyday, Brian is working the angles and contacts to eventually hold the company fully responsible for the management mess that was the Toba/Montrose project.

The company has netted billions of our provinces money on infrastructure projects, but hides in the shadows when the news doesn't go their way. The CEO and upper management hide behind a "spokesman"/shill that makes puppy dog faces for the cameras...and pretends to know what he is talking about. If you look real close you can see the strings that make his arms and mouth move.

In today's "The Tyee"...journalist Tom Sandborn asks BC Premier Christy Clark a few questions. Question 16 is about Sam Fitzpatrick and Kiewit.

http://thetyee.ca/News/2013/07/04/Christy-Clark-Byelection-Debate-Questions/

July 8/2013 Article in the Tyee, by Tom Sandborn about the Canadian "Westray law"...worker deaths and criminal investigations...Brian Fitzpatrick's long battle with the system...plus...unions, lawyers and politicians trying to help

http://goto.thetyee.ca/t?r=1472&c=922968&l=36872&ctl=16D8133:CF4F0CE5DB9EE77EC5C61E09C81869DA8F7D795DAFB9E650&

July 18/2013 Tyee article on Kiewit getting fined for worker death in the U.S. and issues here in B.C

http://thetyee.ca/Blogs/TheHook/2013/07/18/Kiewit-Fine-California/ Hi-

Westray Law book reviewed...Sam Fitzpatrick and Kiewit mentioned



Making a killing in business has a literal meaning in Canada


BY TOM SANDBORN, SPECIAL TO THE SUN JULY 26, 2013 9:37 AM



Still Dying for a Living:Corporate Criminal Liability After the Westray Mine Disaster

by Steven Bittle

UBC Press

We all think we know what murder looks like. Schooled by movies, paperbacks and TV crime shows, we imagine knives and guns, bombs and poison, treacherous spouses, swarthy terrorists and dangerous street thugs. But it turns out that Canadians are far more likely to be killed by their bosses’ negligence or corporate cost-cutting than by street criminals.

Most years in Canada more than 500 of us will be murdered. But each year close to twice that many of us die in what we have been taught to call workplace “accidents,” needlessly crushed, scalded, slashed, electrocuted and poisoned.

Too often, says Steve Bittle, a University of Ottawa criminologist, these “accidental” deaths are the result of what he calls “safety crimes,” wilful decisions by corporate figures who decide to run risks with their workers’s lives to maximize profit. (Every year, the International Labour Organization says, there are more than two million work-related deaths around the world, many attributable to unsafe work conditions.)

Still Dying for a Living, Bittle’s study of this phenomenon, focuses on one notorious Canadian “safety crime,” the deaths of 26 Nova Scotia miners when the Westray Mine exploded in 1992. The book then follows the unsavory tales of weakened language and unenthusiastic enforcement that have attended attempts to increase management accountability through a bill called the “Westray Act,” or Bill C-45.

The Westray mine had been opened with robust government subsidies and it remained open despite recurrent safety concerns, all in the name of job creation and a “healthy economy,” until the day the methane and coal dust ignited and a ball of lethal flame filled the mine.

Despite clear evidence that the deaths were caused by management decisions, not a single executive or manager for Curragh Resources, the company that operated Westray, ever saw the inside of a jail.

Reader, if at this point you are muttering “There oughta be a law,” you aren’t alone. Justice K. Peter Richard’s report into the tragedy deployed the suggestive sub-title “A Predictable Path to Disaster” and called for “legislation ... to ensure that corporate executives and directors are held properly accountable for workplace safety.”

And the United Steelworkers, the union that was in the process of organizing the mine when the deaths occurred, spent more than a decade lobbying Parliament for new laws to make top company executives criminally liable.

It took until 2004 before the Liberals’ Bill C-45, legislation that Bittle argues persuasively had been compromised and weakened in comparison to the earlier New Democratic Party and Progressive Conservative private member bills, finally became law.

And since then, the diminished Westray Act has hardly been enforced, with only about a dozen charges laid in the last nine years.

This dismal enforcement record looks even worse when you remember the numbers; nearly 1,000 workers killed annually and not a single executive or manager jailed. Apparently, the sardonic quip quoted by Bittle, “The rich get richer and the poor get prison,” continues to be a pretty good description of some elements of Canadian public policy.

Although we live a continent away from the graves and the widows of the Westray mine, Bittle’s story is an important one for British Columbians, too.

In 2011, 142 work-related deaths were registered here by WorkSafeBC, and in one local case that year, the United Steelworkers finally laid a private prosecution against Weyerhaeuser managers at a New Westminster mill where Lyle Hewer was killed in 2004 under circumstances that led local police to suggest charges. The provincial Crown quickly took over the case from the union and quashed it.

And in 2009 at Toba Inlet, Sam Fitzpatrick, who was working for Peter Kiewit Infrastructure, died when he was crushed by a boulder that was dislodged by heavy equipment working upslope from him. Despite a scathing report from a WorkSafeBC inspector who characterized the company behaviour as “reckless and grossly negligent,” no criminal charges have been laid in Fitzpatrick’s death.

Apparently the phrase “make a killing in business” still has a dark and literal meaning right across Canada, and that will continue to be the case until the Westray Act is properly enforced and strengthened, as Bittle so cogently argues in this brave and profoundly important (although sometimes dense with academic prolixities and jargon) book.

Still Dying For a Living can be a slow read at times, but it should be on the reading list of everyone in Canada who works for a living or cares about humane public policy.

Tom Sandborn lives and writes in Vancouver. He can be reached attos65@telus.net.
© Copyright

Book review of "Still Dying for a Living" about the Westray law that goes unused in Canada. Book is written by Canadian criminologist Steven Bittle and is reviewed by Tom Sandborn. The Sam Fitzpatrick/Kiewit case is mentioned.

http://www.vancouversun.com/enterta...ess+literal+meaning+Canada/8712323/story.html

Last week ( July 2013 ) the Wall Street Journal ran a story that said Bangladesh has had 2000 fatalities since 1991 and not one conviction.
http://online.wsj.com/article/SB10001424127887324110404578628073467249606.html

Meanwhile in Canada there are 1000 workplace deaths per year...and no solid convictions.