At its annual conference in Ottawa, the Transportation Health and Safety Association of Ontario’s Council of Driver Trainers took a unique approach to the issue of legal liability in the event of a fatal accident at a loading dock: it presented to its members a mock trial.

Based on an actual court case, the exercise provided a revealing look at how courts determine fault — and the questions truck fleet managers can expect should they themselves ever have to take the witness stand.

Council members and real lawyers were cast to play characters in the trial, and although the proceedings were scripted, the outcome was not. Here is their story:

ACT 1 Scene 1

The Players: Brian Hornibrook, a driver trainer at Cambridge, Ont.-based Challenger Motor Freight, plays the part of dock supervisor at a manufacturer called Amazing Gadgets. Robert Desmerais plays the company’s general manager. Vic Pakalnis, director of the Ontario Ministry of Labour who has been involved with such liability cases in the mining industry, plays the presiding judge. Attorney David Law and prosecutor Grainne McGrath play themselves as defence and Crown attorneys.

The scene opens with the reading of the events of the case. On April 4, 2001, 21-year-old Barry Smith, who had been employed at Amazing Gadgets for just three days, was told by his boss, Brian Hornibrook, to sweep and clean around the base of the loading dock. Some time later, Dan Whiteman, a driver for On-Time Deliveries, entered the yard and, as usual, backed up his truck to the dock’s door. Whiteman never saw Smith, who was found under the rear of the trailer lying next to a cracked mop handle and an overturned bucket of water.

Hornibrook and Amazing Gadgets general manager Robert Desmerais stand charged with 1) failing to ensure that a competent person is in full view of the operator, and in full view of the intended path of travel and direction of the operator; 2) failing to ensure barriers, warning signs, and other safeguards for protection of workers in the area; 3) and failing to provide information, instruction, and supervision to a worker. As a supervisor, Hornibrook was subjected to the same charges, plus one more: failing to advise a worker of any potential dangers to health and safety.

Pakalnis: “How do you plead?”

Hornibrook and Desmerais, simultaneously: “Not guilty, your Honor.”

ACT 1 Scene 2

In her opening statement, McGrath reminds the court that this is not a criminal trial but in fact a strict liability case as a result of a six-month investigation by the Ministry of Labour. She says the onus is on the defence to prove the accused did everything in their power to ensure the safety of the victim.

Law, on the other hand, says the evidence will show there is not enough proof to show beyond a reasonable doubt that his clients are guilty. Moreover, he states Smith did not follow instructions properly. He also shifts the blame on to someone else.

Law: “The Crown’s key witness — the driver of the truck — is in fact the party that should be charged. If anyone is at fault it is On-Time Deliveries, which is here with the Crown.”

ACT 2 Scene 1

The Players: Gary Crossman, a Ministry of Labour inspector, plays himself. Dan Whiteman, a driver with Prescott, Ont.-based Kriska Transportation, plays the driver whose truck killed Smith. John Ham, safety manager at Copp’s Buildall in London, Ont., plays a dockworker at Amazing Gadgets.

In this scene, the Crown puts three witnesses on the stand. First, Crossman testifies that during his investigation Hornibrook told him Amazing Gadgets has no formal, written policy on procedures for working near a loading dock, but that employees do receive verbal instructions. Crossman also says he saw no traffic cones or signs to warn dockworkers and truck drivers about the potential for accidents.

During Law’s cross-examination, Crossman admits he did not ask Whiteman, the driver, if he checked his mirrors or got out of his truck to see if there was anyone at the dock entrance — proper safety procedures.

Next, Whiteman tells the Crown it is standard practice at the Amazing Gadgets yard not to check in with the office upon arrival. Every time, he simply pulls up to the dock and backs in, using his warning lights, beeper, and mirrors as aids.

McGrath: “Is there usually someone to direct you?”

Whiteman: “Mr. Ham is usually there, but on this day he was not.”

On cross-examination, Whiteman testifies that he saw no one at the mouth of the dock before backing in. At this point, the defence goes on the attack.

Law: “Not seeing anything could be consistent with not looking, right, sir? How could you have surveyed the scene so scrupulously and then claim you saw nothing before backing in? If you were actually looking in mirrors the whole time, how is it possible that Smith popped out of nowhere and ended up underneath your truck?”

The Crown’s final witness, John Ham, says he cannot recall any warning signs or barriers at the dock. He was not in the yard when the accident happened, and only ran out when he heard a scream.

He tells Law during cross that although he usually puts out cones, he was told by another supervisor to perform other duties. He also says Smith was listening to music through headphones that morning, and did not appear to have his safety vest on.

ACT 2 Scene 2

The Players: Ed Wessilius, a driver trainer with Kriska, plays the health and safety rep at Amazing Gadgets. THSAO health and safety consultant Don Danbrook plays himself.

Three defence witnesses take the stand in this scene. The first is Wessilius, who says the company’s safety committee meets frequently to discuss docking procedures, including the use of barriers and warning signs. He says this is the company’s first serious accident. Upon cross, Wessilius admits Amazing Gadgets has no formal written policy on dock safety, but quickly notes that one is being drafted.

Danbrook tells the court that Amazing Gadgets called him before the accident about helping the company create formal safety policies. He says On-Time Deliveries was asked to take part, but refused. He adds that THSAO recommends never to back up a truck without a signaler present.

McGrath then questions Wessilius, who concedes that he had concerns about safety practices around the yard and told his company managers to address them.

Finally, Hornibrook, the dock supervisor, testifies he instructed Smith to clean the dock and twice told him to remove his headphones while working.

Hornibrook: “It’s impossible to come out of the office, near the dock, and not know a truck is bearing down on you. Because he was listening to music on his headphones, Smith may not have heard it.”

He adds that in fact it is company policy that drivers check into the office before docking, although many drivers ignore the rule. Hornibrook wraps up by saying he instructed Ham to watch over Smith and was not told that another supervisor instructed Ham to carry out other duties.

Under cross, McGrath explains that Ontario’s Occupational Health and Safety Code requires companies to provide a signaler. Hornibrook says Smith was told on the first day to watch out for trucks.

McGrath: “You say you told him about the headphones twice. Why not more?”

Hornibrook: “I have many duties myself. I can’t babysit all day long.”

She also points out that Whiteman was allowed to dock without having to report to the office every morning prior to the accident. If there was a reporting policy, she adds, it was never enforced.

ACT 3 Scene 1: The ruling

Judge Pakalnis has to decide whether the accused committed what they are charged with beyond a reasonable doubt, and whether the defence succeeded in proving the accused did everything in their power to ensure safety.

Here are his findings:

The absence of a signaler, as well as barriers and signage, is key. It indicates the company’s failure to comply with the Act, which requires employers to provide ongoing supervision to ensure that all practices are followed or remedied.

Although the accused took safety precautions, they were not consistently enforced. “The truck driver said what he had done that morning was what he was allowed to do every morning, regardless of verbal policies in place.”

There was miscommunication. Ham and Hornibrook, among others, were not aware of what their various duties were.

Hornibrook said he had told Smith to remove his headphones, but how that was done, how diligently that was done, cannot be corroborated.

That employees were expected to work without ongoing supervision contradicts the Act.

As to the truck driver’s responsibilities, Pakalnis said that in any other case, the driver likely would have been charged with negligence. Whiteman probably was not charged because the Crown wanted him as a witness.

Pakalnis: “On the three counts charged to Mr. Desmerais and Amazing Gadgets, this court finds you guilty. The court also finds Mr. Hornibrook guilty on the first two charges and reasonable doubt on the last one, failure to advise, and therefore not guilty.”

Pakalnis fines Desmerais and Amazing Gadgets $150,000 and Hornibrook personally $20,000. He states his decision is based on size of the company, scope of economic activity, potential harm to workers, maximum fine under the statute ($500,000 per count), and the overall need for a deterrent. Just before the curtains close, leaving the audience to discuss the outcome among themselves, Pakalnis offers a few last words of wisdom.

“If you want to be responsible, you have to be accountable,” he says. “But if you want to be accountable, you have to have the ability and the tools to know what you’re doing.”