A. The hospital is liable because it violated its duty to protect the safety of visitors to the premises under the province’s Occupiers’ Liability Act.

EXPLANATION

This situation is based on a case from Ontario. A paediatric dental surgeon broke her wrist after she fell on a wet floor in a hospital hallway. A hospital janitor was mopping the floor
at the time but hadn’t put out “wet floor” signs as required by hospital safety policy. The surgeon sued the hospital under Ontario’s Occupiers’ Liability Act.
The court explained that, under the Occupiers’ Liability Act, a property owner has a duty to “take such care as in all the circumstances is reasonable” to see that visitors to the property
are reasonably safe while on the premises. That is, the hospital had a duty to keep the corridors on the surgical floor safe for all individuals using them, including the surgeon. There’s no
question that a wet floor poses a slip-and-fall hazard. The hospital recognized this danger by creating detailed cleaning procedures and training staff on these procedures. These procedures included putting out signs warning people that the floor was wet. But the janitor, a hospital employee, didn’t put out the required “wet floor” signs. And his breach of hospital procedures constituted a breach by the hospital of its duty under the Occupiers’ Liability Act, the court concluded.

WHY WRONG ANSWERS ARE WRONG
B is wrong because had the hospital violated the OHS Act, the surgeon still couldn’t sue it under that law for her injuries. OHS laws require “employers” to safeguard “workers” from injury. But even if the hospital was considered the surgeon’s “employer,” its failure to protect her might result in a safety violation but not a civil lawsuit for damages. That’s because the OHS laws—and the workers’ compensation laws—don’t allow injured workers to sue their employers for workplace injuries.
C is wrong because even if the surgeon was negligent (and it’s not clear that she was), such negligence might reduce her damages but wouldn’t get the hospital off the hook. In Canada,
courts consider whether an injured party contributed to her own injuries. If so, the court will apportion the negligence between the injured party and the person she’s suing and reduce the damages accordingly. But so-called “contributory negligence” won’t absolve the defendant from liability.

D is the wrong because even though the janitor caused the surgeon’s fall by failing to put out wet floor signs while he was mopping the floor, the hospital—not the janitor—has a duty to
ensure the safety of visitors to its premises. And the janitor’s failure to obey hospital policy would constitute a violation of that duty.

SHOW YOUR LAWYER
Hibberd v. William Osler Health Centre, [2009] O.J. No. 588, Feb. 13, 2009

We’ll tell you what the OHS laws say about machine guarding and how to comply with those requirements. There’s also a chart that tells you when machine guards are required in each part of Canada

ONLINE RESOURCE: You can access guidance and other government resources on machine guarding at the end of this article, as well as a Machine Risk Assessment Survey you can use to determine if machinery needs guarding and a Safeguarding Checklist you can use to ensure that the machinery in your workplace is properly guarded.

Defining Our Terms
The OHS laws use the terms “guard,” “safeguard” and “protector” to describe any type of device that physically prevents a worker from reaching over, under, around or through to a moving part or other dangerous area of machinery. We’ll use the term “guard” throughout this article to refer to such devices. In addition, this article addresses machine guarding requirements only. Other types of equipment in the workplace, such as mobilized equipment and hoists, have their own guarding requirements.

WHAT THE LAW SAYS
The OHS regulations in every jurisdiction contain machine guarding requirements. Although the specifics vary, they all require the use of engineering controls—including guards—that form a physical barrier to keep workers who work with or near the machine away from points of danger. Guarding requirements are often divided into two broad categories:

• General guarding requirements; and

• Guarding requirements for specific types of machinery, such as woodworking equipment, presses, shears and conveyors.

The general guarding requirements typically address:

• When guards are required;
• The hazards guards must protect workers from;
• Situations in which guards aren’t needed; and
• Removal of guards.

We’ll discuss these requirements in detail below.

HOW TO COMPLY
To ensure that your company complies with the machine guarding requirements, you should take the following steps:

Step #1: Conduct Risk Assessment to Determine if Guards Are Required
You first need to determine if any machinery in your workplace requires guards. The OHS laws generally require guards if workers using or working near that machinery could be exposed to the following hazards:

• Moving parts;
• Pinchpoints;
• Points of machinery at which material is cut, shaped, bored or formed;
• Surfaces with temperatures that may cause skin to freeze, burn or blister;
• Open flames;
• Energized electrical cables or components;
• Power transmission parts;
• Debris, material or objects thrown from machinery;
• Material being fed into or removed from process machinery;
• Machinery or equipment that may be hazardous due to its operation; or
• Any other hazard posed by the machinery.

To determine if any machinery in your workplace needs guards, conduct a risk assessment survey that:

• Identifies and describes every hazardous machine motion or condition to which workers could be exposed, such as in-running nip hazards, rotating shafts, flying debris or abrasive surfaces;
• Describes the worst injury that could reasonably occur if a worker was exposed to the identified hazards, such as death, amputation, burns or fractures;
• Estimates the likelihood of such injuries occurring, considering factors such as the machine’s speed, previous injuries on that machine and any history of jams or misfeeds;
• Calculates the resulting level of risk, which is based on the severity of the injury and its likelihood of occurring; and
• Determines the types of guards needed to eliminate or reduce the risk to an acceptable level.

ONLINE RESOURCE: You can download a Machine Risk Assessment Survey that can be used to evaluate the need for guarding on machinery.

Step #2: Install Effective Guards
Make sure the company installs any guards that your risk assessment determines are necessary. Keep in mind that the OHS laws don’t just require guards—they require effective guards. For example, the OHS laws in BC, NL, NT, NU and YT specify that a guard must be capable of effectively performing its intended function. Other OHS laws imply that guards must be effective by requiring them to protect workers from contacting the hazards or accessing dangerous areas of machinery.

In addition, some OHS laws require machine guards to comply with voluntary safety standards, such as those issued by the Canadian Standards Association (CSA). For example, in BC, MB, NL and YT, the application, design, construction, installation, maintenance and/or use of guards, including guard openings and reach distances to hazardous parts, must comply with CSA Standard Z432-94, Safeguarding of Machinery. NT and NU require guards to comply with the current CSA standard, current ANSI standard or another standard accepted by the territory’s Chief Safety Officer. Fed and BC also say that guards on certain machinery (such as woodworking machinery and punch presses) must comply with voluntary standards for those specific types of machines.

Exceptions to Guarding Requirement
Even if you’ve determined that a machine poses the kind of hazard that would require a guard, you may not need to install one if an exception applies. There are two broad kinds of  exceptions:

When the machine has an auto-stop device. Under the OHS laws in AB, NB, NS, PE and SK, machinery that would otherwise require a guard doesn’t need one if it’s equipped with a device that automatically stops the machine before or when a worker comes into contact with moving parts.

When a guard isn’t “reasonably practicable.” Sometimes it’s not “reasonably practicable” (or is “impracticable”) to install a guard on a machine because, say, the guard would interfere
with its operation or would actually endanger workers. Some OHS laws address this situation by requiring companies to use alternate means to protect workers. For example, under the
machine guarding sections of the OHS regulations in AB, MB, NB, PE and QC, if it’s not reasonably practicable to install a guard on a machine, the employer must use an alternate means
to protect workers, such as a device (e.g., a push block), physical modification or a work procedure. That alternate means must provide protection for workers that’s equal to or greater than the protection a guard would provide. In BC and NS, employers must use alternate means of protecting workers from hazards on certain kinds of machines when guards aren’t  practicable.

Insider Says: For an analysis of how to determine when a safety requirement is “impracticable”, see Insider, Vol. 4, Issue 12, p. 1.

Step #3: Bar Workers from Circumventing Guards
Like most engineering controls, guards must be accompanied by work and administrative controls to ensure their effectiveness. For example, your company must have measures to ensure guards are kept in place once they’re installed. If a worker feels that a guard hampers his ability to do his job quickly or effectively, he may decide to remove the guard and simply be “extra careful” when working. Of course, guards are useless if workers remove or tamper with them. So the OHS laws specifically:

• Say that guards shouldn’t be removable or should be removable only with tools; and
• Bar workers from removing or tampering with guards unless necessary to make a repair or do routine maintenance.

As noted, it may sometimes be necessary to remove guards. The OHS laws recognize this need but require workers to still be protected. For example, the OHS laws may only permit workers to remove a guard when the machine has been deenergized, locked out or alternative protections are in place. And as soon as the necessary repair or maintenance work is done, the worker should immediately replace the guard and ensure that it functions properly before the machine is put back into operation.

Step #4: Train Workers on Guarding Practices
As with all safety policies, you must train workers on the company’s guards and guarding practices. Such training should cover:

• Why guards are needed;
• What kinds of guards the company uses and how they protect workers;
• Why guards shouldn’t be removed or tampered with;
• Procedures to follow when guards must be removed; and
• Penalties for violating guarding rules, such as discipline up to, and including, dismissal.

You must also ensure that workers understand this training and apply it in the workplace. And you must discipline workers who tamper with machine guards or violate guarding practices.

Step #5: Reassess Guarding Practices
You should periodically inspect your guards and guarding practices, investigate any guarding incidents that arise and use your findings to evaluate the effectiveness of the measures your company’s using. For example, ensure that all hazards have been properly guarded, the guards that have been installed are adequately protecting workers and aren’t interfering with the operation of the machinery, workers have been properly trained on the guards, etc.

ONLINE RESOURCE: You can download a Machine Guarding Checklist that can be used to for a guarding reassessment.

Conclusion
Each year, thousands of workers are injured—often seriously—by machinery. Their fingers are crushed, limbs amputated, skin burned. And some workers die. But these injuries are  nearly all preventable if the hazards on machinery are properly guarded with effective safety devices and workers are trained on the use of these guards. Safety coordinators like you must ensure that your company complies with the guarding requirements in your jurisdiction’s OHS law to not only protect workers from injury but also protect the company from liability.

Machine Guarding Resources

Some jurisdictions provide resources on machine guarding. Here are links to some of them:

ALBERTA: OHS Code 2009 Explanation Guide, Part 22 Safeguards

BRITISH COLUMBIA: Safeguarding Machinery and Equipment: General Requirements; Safeguarding in Manufacturing: A Companion Guide to Safeguarding Machinery and Equipment

MANITOBA: Guideline for Safeguarding Machinery and Equipment

QUÉBEC: Machine Safety

FEDERAL: Every machine that has exposed moving, rotating, electrically charged or hot parts or that processes, transports or handles material that constitutes a hazard to a worker must be equipped with a machine guard [Canada OHS Regs., Sec. 13.13(1)].
ALBERTA: An employer must provide safeguards if a worker may accidentally, or through the work process, come into contact with: a) moving parts of machinery or equipment; b) points of machinery or equipment at which material is cut, shaped or bored; c) surfaces with temperatures that may cause skin to freeze, burn or blister; d) energized electrical cables; e) debris, material or objects thrown from machinery or equipment; f) material being fed into or removed from process machinery or equipment; g) machinery or equipment that may be hazardous due to its operation; or h) any other hazard [OHS Code 2009, Sec. 310(2)].
BRITIS H COLUMBIA: Unless otherwise provided for in the OHS Regulation, an employer must ensure that machinery and equipment is fitted with adequate safeguards which: a) protect workers from contact with hazardous power transmission parts; b) ensure that a worker can’t access a hazardous point of operation; and c) safely contain any material ejected by the work process, which could be hazardous to workers [OHS Reg., Sec. 12.2].

MANITO BA: Subject to Sec. 16.6, an employer must ensure that a machine has safeguards on it that will prevent a worker from coming into contact with the following hazards: a) moving parts on the machine; b) points of the machine at which material is cut, shaped or bored; c) surfaces with temperatures that may cause skin to freeze, burn or blister; d) energized components; e) debris, material or objects thrown from a machine; f) material being fed into or removed from the machine; or g) any other hazard that may pose a risk to workers’ health and safety [Workplace Health and Safety Reg., Sec. 16.5(1)].
NE W BRUNSWIC K: Where a worker may come into contact with moving drive or idler belts, rollers, gears, driveshafts, keyways, pulleys, sprockets, chains, ropes, spindles, drums, counterweights, flywheels, couplings, pinchpoints, cutting edges or other moving parts on a machine that may be hazardous to the worker, the employer shall provide adequate safeguards to prevent such contact [OHS Regs., Sec. 242(1)].
NE WFOUNDLAND /LABRADOR: Except as otherwise provided in the regulations, an employer must ensure that machinery and equipment is fitted with adequate safeguards that: a) protect workers from contact with hazardous power transmission parts; b) ensure that workers can’t access a hazardous point of operation; and c) safely contain material ejected by the work process that could be hazardous to workers [OHS Regs. 2009, Sec. 89].
NORTHWEST TERRITO RIES /NUNAVUT: Machinery and equipment must be equipped with guards that prevent workers from contacting moving parts and from entering a
danger area during operation [General Safety Regs., Sec. 97].

NOVA SCOTIA: Where a person may come into contact with a moving part of a machine or tool that may present a hazard to the person, the employer must ensure that an adequate safeguard has been installed on the machine or tool to prevent contact [Occupational Safety General Regs., Sec. 87(2)].

ONTARIO : 1) Where a machine, prime mover or transmission equipment has an exposed moving part that may endanger the safety of any worker, it must be equipped with and guarded by a guard or other device that prevents access to the moving part [Industrial Establishments Reg., Sec. 24]; 2) an in-running nip hazard or any part of a machine, device or thing that may endanger the safety of any worker must be equipped with and guarded by a guard or other device that prevents access to the pinch point [Sec. 25]; and 3) a machine must be shielded or guarded so that the product, material being processed or waste stock won’t endanger the safety of any worker [Sec. 26].
PRINCE EDWARD ISLAND : An employer must ensure that all moving parts of machinery, equipment and tools are effectively safeguarded unless: a) they’re constructed or located so as to prevent a person or object from coming into contact with them; or b) the guarding would unreasonably interfere with the operation of the machinery, equipment or tool [OHS General Regs., Sec. 30.2].
QUÉBEC : Subject to Sec. 183, a machine must be designed and built so as to make its danger zone inaccessible, failing which it must be equipped with at least one of the specified protectors or protective devices [Regulation respecting Occupational Health and Safety, Sec. 182].
SASKATCHEWAN: Except where otherwise provided by the regulations, an employer or contractor must provide an effective safeguard where a worker may contact: a) a dangerous moving part of a machine; b) a pinch point, cutting edge or point of a machine at which material is cut, shaped, bored or formed; c) an open flame; d) a steam pipe or other surface with a temperature that exceeds or may exceed 80° Celsius; or e) a cooled surface that is or may be less than -80° Celsius [OHS Regs., Sec. 137(1)].
YUKON : Machinery and equipment must be fitted with proper and adequate safeguards that: a) protect a worker from contact with hazardous power transmission parts; b) ensure that a worker can’t access a hazardous point of operation; c) safely contain any material ejected by the work process, which could be hazardous to a worker; and d) meet all the  requirements of CSA Standard Z432-04, Safeguarding of Machinery or other similar standard acceptable to the Director [OHS Regs., Sec. 7.02]