Safety and Due Diligence — A Geophysicist’s Perspective

What do you, as a staff geophysicist, need to know and do about safety on the geophysical programs you are undertaking? What are your responsibilities or more importantly, where might you be found liable if something goes wrong during the completion of what often is extensive, costly and inherently hazardous work? The answer: exercise due diligence. Before we examine due diligence, you need to understand some vitally important issues pertaining to the Occupational Health and Safety Acts and Regulations in the various jurisdictions that you will be working in. Even though the wording may be different, the intent of the legislation in every jurisdiction is virtually the same.

You, as the owner of the work site are viewed as an employer, and as such, are responsible for the following:

• The health and safety of all workers employed on your site.
• The health and safety of all persons present though not actively employed by you on the site.
• Ensuring that all workers on your site are aware of their legislated responsibilities and duties in regards to their own health and safety.

Most geophysicists do not necessarily have the time nor possess the knowledge, skills and resources to direct the complex operations involved in completing a seismic program today. Geophysical consultants and geophysical contractors are retained for this reason, and are normally designated as the “Prime Contractor” on the site. In the eyes of the law, the Prime (or Principal) Contractor acts as the “designated representative of the owner” on the work site, and “by contract, agreement or ownership, (they) direct the activities of one or more employers working at the work site”. Operational, budgetary and quality control concerns make up much of the activities of the Prime Contractor. However while they are acting on behalf of the owner their primary role, as detailed in the various jurisdictions’ legislation, is to protect the health and safety of all workers on the site, and to ensure that all legislative requirements in regards to health and safety are met. So now you’re in the clear prosecution-wise after hiring a consultant or contractor to act as your representative on site? NOT QUITE SO FAST!

Ultimately, the owner of the work site retains responsibility, and therefore liability, for the health and safety activities on their program. And so we return to the issue of due diligence.

Occupational Health and Safety legislation can be viewed as a quasi-criminal statute as it imposes a strict liability. The employer must be able to prove that they took all reasonable care or did everything reasonably practicable to prevent an incident from occurring on their site. With this, the crown opened the “due diligence defense”. Due diligence is a strict liability law, as opposed to an absolute liability law. Receiving a speeding ticket is an example of enforcement of an absolute liability law (and a strict liability response of “I did everything reasonably practicable not to speed” somehow just doesn’t cut it while the cop is writing the ticket).

Due diligence is made up of three elements:

• Use of reasonable care — could a reasonable person have foreseen that something could go wrong? (hazard identification)
• Establishment of appropriate preventative systems — was there an opportunity to prevent the incident? (preparing and implementing safe work procedures, and training workers in these procedures for all hazardous work)
• Effective operations of preventative systems — who was the responsible person in control, and could he/she have prevented the incident? (site inspections, audits, compliance enforcement)

Against each of these elements a prosecutor would compare the practices of you and your company to three things: (1) relevant provincial, federal or international standards (2) industry best practices, and (3) your own programs, policies and procedures.

So how do you prove due diligence? Regardless of whether you hire a consultant or a geophysical contractor to manage your seismic programs, you are still required to exercise due diligence. Before entering into any sort of formal agreement with either a consultant or a geophysical contractor, you must first ensure that the consultant or contractor is competent to manage both the operational and health and safety components of your seismic program. Reference checks or past work history would probably suffice to check on their operational abilities, but how do you ensure that the consultant or contractor is able to fulfill their safety management responsibilities? Are they knowledgeable in all aspects of the work site? One very good and widely accepted way of protecting yourself is to ensure that they possess a Certificate of Recognition (COR), issued from Alberta Human Resources and Employment. COR holders have proven that they have developed an effective safety program according to an established standard by passing an external audit of their program, and maintain their COR with annual internal audits, and external audits every three years (the certificates expire). The Partners in Health and Safety Program (from which the COR’s are derived from) is internationally acclaimed, and participation in this program would comprise a vital component of your due diligence defense.

Once you have confirmed the competency of the consultant or contractor, then an important step would be to have a written prime contractor agreement in place. This simple one page document (Seismic Company A agrees to assume the role of Prime Contractor on the XYZ Geophysical Program for Oil Company B) is not only a very good idea, but is a legislative requirement in some jurisdictions (British Columbia, for example).

While the exercise of due diligence is directed to protecting you from criminal prosecution, there are steps you should take to protect your company and yourself from a possible civil suit. Workers compensation coverage is legislated, but it is possible that as an “employer” you or your company could be exposed to lawsuits arising from workplace injuries. Obtain a WCB certificate on all contractors or subcontractors prior to work starting, in order to protect yourself in the event of a lawsuit, and receive a clearance before releasing cheques to protect from being responsible for any delinquent premiums. Thus the importance of verifying that current WCB accounts are in place and that the directors have personal coverage. Another important step is to ask your contractor for proof of liability insurance.

These simple first steps detailed above can be invaluable in ensuring that you have chosen the right consultant or contractor to manage your seismic program.

It is important to note that beyond this, some form of follow up on the owner’s part is necessary to ensure that the safety systems are being maintained. Following up on your initial investigations, and taking an active role in the health and safety requirements of your program will help to protect yourself, and your company’s interests.

REMEMBER: DUE DILIGENCE IS WHAT YOU DO BEFORE AN INCIDENT OCCURS, NOT WHAT YOU DO AFTERWARDS!