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| Canada, Hong Kong & UK in the law courts. |
R v. Skyreach Window Cleaning Inc. (unreported, October 28, 2014, Ontario Ct. Jus Triantafilopoulos J.P.) - This case was a prosecution under the “general duty clause” alleging that the employer failed to take the reasonable precaution of showing workers a user manual for a custom built swing stage system on a building. A piece of the swing-stage had fallen off the device to the ground below. The Crown alleged that the swing stage had been improperly parked.
The Court granted a non-suit motion brought by the defence on the basis that the user manual did not specifically specify that the machine should be parked in any particular place for safety purposes. The Court also found that nobody had provided a user manual to the employer in any event.
This case is one example of a prosecution based on an alleged failure of an employer to show a worker the user manual. In such cases careful attention should be paid to what the manual actually requires the worker to do from a safety perspective and whether other types of training addressed the issues set out in the manual.
What employers should know
The best way to avoid a prosecution, not to mention potentially devastating workplace accidents, is to ensure your due diligence program is fully implemented and continually refreshed and improved. At the 2015 Ontario employment law conference, employment lawyer Ryan Conlin will provide guidance on scope of employer OH&S duties. This session will review:
Changes to the definition of a "worker" under the Occupational Health and Safety Act and its implications,
Recent cases involving criminal prosecutions and jail terms for employers and corporate officers, and
Trends in enforcement of the Act by the Ministry of Labour and how to manage Ministry investigations.
Attending the 16th annual Ontario Employment Law Conference, presented by Stringer LLP and First Reference Inc., is more essential than ever.
The Ontario Employment Law Conference will take place at the Centre for Health & Safety Innovation in Mississauga on June 4, 2015. We look forward to seeing you and helping you apply the latest employment and labour law changes.
Measures to prevent accidents arising from window cleaning: Hong Kong (HKSAR) - Following is a question by the Hon Chan Kin-por and a written reply by the Secretary for Development, Mr Paul Chan, in the Legislative Council today: Question:
It has been reported that in recent years, accidents have happened from time to time in which people sustained injuries or even died as a result of falling from heights when cleaning windows. The causes for such accidents include that people fell from heights because they had lost balance due to overstretching of their bodies from windows, or people fell from heights together with dilapidated windows whichhad been dislodged as the latter could not support their body weights. In this connection, will the Government inform this Council:
(1) whether it has compiled statistics on the number and resultant casualties of accidents in which people fell from heights when cleaning windows; if it has, of the statistics in the past five years; if not, whether it will collect such statistics in future;
(2) given that a number of private buildings are not included in the Mandatory Window Inspection Scheme at present, of the measures that the authorities have put in place to ensure window safety of such buildings;
(3) of the procedures adopted by the authorities at present for inspecting and repairing windows of public rental housing blocks; and the monitoring measures in place to ensure that the inspection procedures comply with the relevant safety requirements; and
(4) of the current publicity work through which people are reminded of the need to pay attention to safety when cleaning windows; whether the publicity channels include television announcements in the public interest, or posters posted in the lift lobbies of buildings; the amount of resources deployed by the Government for conducting the relevant publicity work in each of the past five years; whether it has plans to allocate more resources this year to conduct large-scale territory-wide publicity activities with a view to enhancing the coverage of the publicity work, or to create a cartoon character similar to the "Big Waster" in the Food Wise Hong Kong Campaign in order to enhance public awareness about safety in window cleaning in a lively manner; if it does, of the details; if not, the reasons for that?
Reply:
President,
Hon Chan's question touches on matters under the purview of different bureaux and departments. My reply to the four-part question, in consultation with the relevant bureaux and departments, is as follows:
(1) Relevant departments have not maintained statistics on accidents in which members of the public fell from heights when cleaning windows. According to the records of the Labour Department, between 2010 and 2014, there were four accidents in which employees fell from heights when cleaning windows, involving four deceased employees.
(2) The Buildings Department (BD) fully implemented the Mandatory Building Inspection Scheme and the Mandatory Window Inspection Scheme (MWIS) on June 30, 2012 to tackle the problem of building neglect at source. According to the Buildings Ordinance (BO) (Cap.
123), MWIS applies to private buildings aged 10 years or above (except domestic buildings not exceeding three storeys). BD may issue a statutory notice to the owners of these buildings, requiring them to appoint a qualified person within a specified timeframe to carry out a prescribed inspection and supervise the prescribed repair works found necessary of the windows of the building.
Building owners are responsible for properly maintaining and managing their properties. We encourage owners to carry out regular inspections and repairs of their windows as necessary on their own initiative to ensure safety.
Even if a building is not included in MWIS, where BD has identified dangerous or defective windows, it will take enforcement action under BO, including issuing a repair order to the owner requiring him to carry out repair works, and instigating prosecution against owners who have not complied with the repair orders. BD, the Hong Kong Housing Society (HKHS) and the Urban Renewal Authority (URA) have also launched various schemes to provide financial and technical support to building owners in need to assist them in maintaining and repairing their properties including windows.
(3) The Hong Kong Housing Authority attaches great importance to building safety, including window safety, of its public rental housing (PRH) flats. While MWIS does not cover PRH flats, the Total Maintenance Scheme of the Housing Department (HD) includes window inspection which is conducted by trained inspectors.
If there is a need to repair the windows, the case will be referred to contractors registered under BO. HD will also supervise the repair works to ensure its quality.
(4) BD has launched television and radio Announcements of Public Interest (APIs) in respect of window safety, published a booklet "Important Notes about Window Safety", etc. to provide practical information about proper maintenance and repair of aluminium windows, minor works relating to windows and MWIS to the public for reference.
The "Important Notes about Window Safety" booklet has been uploaded to BD's website. BD will regularly arrange the APIs to be broadcast on television, radio and public transport vehicles. It will also launch newspaper supplements and issue letters to owners' corporations (OCs) and mutual aid committees to remind building owners and occupiers to pay attention to safety when cleaning windows.
Moreover, BD will organise large-scale publicity events for members of the public such as "Building Safety Carnival" and "Building Safety Week" to enhance their understanding of the importance of building and window safety through diversified activities. To complement the launch of MWIS, BD, in collaboration with HKHS and URA, will organise district briefing sessions for owners of target buildings throughout the territory to explain the details of the scheme. BD will also attend residents' meetings and seminars arranged or organised by district organisations or OCs to publicise MWIS in the community and answer residents' enquiries.
BD will continue to promote window safety through different channels. The relevant work is part of the overall duties of BD in promoting building safety and there is no breakdown of the expenditure for the related work. As regards whether publicity would be carried out by means of a cartoon character, BD will adopt an open mind in considering the suggestion.
Concerning PRH, through various channels, HD from time to time reminds tenants of the proper use of windows and draws their attention to the safety issues when cleaning windows, including posting up notices, holding estate activities, distributing newsletters, etc.
In order to prevent accidents, HD also reminds tenants to immediately report any damages to windows in their units to the estate offices for repair.
Separately, the Occupational Safety and Health Council (OSHC) has issued publications relating to the work of domestic helpers, which covers safety measures for household window cleaning. OSHC will also continue to organise regularly courses on working-at-height safety for household workers and domestic helpers and publicity activities to enhance their safety awareness of window cleaning.
Edward Perry, 57, fractured his spine on February 28 2013 whilst trying to get a suitcase out of the loft at his home in Victoria Park Road for a holiday to Portugal. His daughter was told by doctors at the Royal London Hospital in Whitechapel that his injury was very common and he would be out of hospital within a week, but by March 8 he was dead.
An inquest at Poplar Coroner’s Court heard how doctors failed to act on the fact that his stomach had swollen up by March 2 through paralysis of the bowel, a rare complication of spinal injury caused by surrounding nerve damage. Eventually he suffered “catastrophic vomiting” and cardiac arrest.
Dr Bunker, ICU consultant and anaesthetist, who was drafted in after a year to lead the delayed investigation into his death, said it had been repeatedly noticed in the medical records he had a distended abdomen. He said: “We could have intervened more aggressively to prevent what happened on the night of March 7, the trouble is we continued a conservative approach on the 4, 5 and 6 despite him not getting better.”
However the barrister acting for the family said: “When you say the conservative approach was adopted regarding the abdomen, that’s not the case is it? There was no plan in place regarding the abdomen.”
Dr Bunker agreed and went on to detail how junior members of staff now receive training on how to manage deteriorating patients, and how neurosurgeons are responsible “not only at the brain and nerves but the whole patient”.
There was also a recognition the major trauma centre was understaffed, as there was only one registrar working that night. Coroner William Dolman recorded a narrative verdict, ruling Mr Perry died of an extremely rare complication of a spinal injury caused by a fall, which wasn’t recognised in time.
He said: “From the facts we are getting very close to neglect but we don’t reach the standard required by law. The real problem arose because the gravity of the clinical picture was not appreciated, the doctors saw the signs but didn’t recognise their significance.”
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