Company faces five charges after fatal accident in 2009
Did Concord Paving Ltd. of Carbonear do everything reasonable to keep its employees safe on the job?
That's the question before provincial court Judge Lois Skanes.
On May 22, 2009, a four-person crew was digging ditches and clearing land, on the side of the Holyrood Access Road when flagman Tom Connors, 57, was caught underneath an excavator and died.
While Concord was not found criminally responsible for his death, the company faces five charges under the Occupational Health and Safety Act.
The charges relate generally to allegations the company failed, as an employer, to provide a safe workplace, to ensure effective means of traffic control were provided and to ensure workers were not exposed to the movement of heavy equipment.
On Thursday morning, defence lawyer John Babb continued with his final submissions.
Shortly after he began, the judge noted some of the facts in the case have largely been agreed upon by Babb and Crown prosecutor Shawn Patten.
But Babb suggested two of the five charges the company faces should have been levelled at excavator operator Eugene Cole.
While Cole may have made an error by not double checking where Connors was before he moved the machine - something an operator with his experience should have been well aware of - Babb said that doesn't mean the company is liable.
Babb said Concord did everything it was supposed to in order to ensure a safe work site.
"Reasonable precautions were certainly taken," he said.
But when Patten began his final submissions in the afternoon, he said Concord did fail in its duty to maintain a safe workplace.
He said the company is at fault because it failed to provide the tools needed for safe communication at the job site.
Patten said if Connors and flagwoman Delphine Mugford were where they should have been standing, they could not see each other properly and they should have either had two-way radios to communicate back and forth or a third flag person should have been stationed between the two to co-ordinate communication.
Patten said lead investigator Edward Wade testified it would have been hard for the two to communicate without some help, though Babb had already suggested Wade's investigation was flawed.
Patten said Concord co-owner and job supervisor, Scott Mullins, also didn't keep a close enough eye on his employees to make sure they were working in a safe manner or he would have noticed Connors was often too close to the excavator the week leading up to the accident.
While several witnesses - included Connors' fellow crew members and two provincial government officials - testified they had asked Connors to move back from the machine, nobody informed the company of any problem.
Patten also said a signal person, someone who would guide the excavator when the driver couldn't properly see, should have also been on the job.
Skanes is expected to deliver her decision May 24.