‘Essentially, he did nothing he was required to do’
Judge finds Jason Andrew King, 44, guilty of criminal negligence causing the death of Michael Anthony Henderson at Fredericton construction site five years ago
A construction site foreman showed “a wanton and reckless disregard” for a teenage worker’s safety, a judge ruled Monday, and that negligence led to the worker’s tragic drowning five years ago.
Jason Andrew King, 44, of Crabbe Mountain Rd. in Central Hainesville, stood trial earlier this year on a charge of criminal negligence causing death.
The case stemmed from a workplace fatality at a construction project at the City of Fredericton’s Barker Street Wastewater Treatment Plant on Aug. 16, 2018.
Michael Anthony Henderson died that day. He was only 18 years old and had just graduated from high school a couple of months before.
Evidence at trial indicated Henderson was at the bottom of an eight-foot hole cleaning out debris by passing buckets of it to another worker waiting above.
Court of King’s Bench Justice Thomas Christie, in rendering his decision on the case Monday at the Burton Courthouse, noted King was working as the site supervisor at the time, employed by Springhill Construction Ltd.
King was Henderson’s direct supervisor on the jobsite.
Christie noted that when Henderson was in the hole, King had arranged for water to flow into the connected piping system in preparation for a leak test planned for later that day.
King knew Henderson would be in the hole because he was the one who assigned him and another worker to clear out the debris, court heard.
“He knew Michael was in the hole when he started the leak test before lunch,” the judge said.
A large pneumatic rubber plug was used to seal the pipe leading to the hole, he said, but water still leaked in a bit as Henderson was working.
At some point over the noon-hour on Aug. 16, 2018, the plug gave way and pinned Henderson to the side of the hole, Christie said, and 32,000 litres of water immediately filled the hole.
Others heard the plug give way and the water rushing into the confined space, court heard, including Henderson’s brother, Eric, who jumped into the hole, went underwater and tried to free the 18-year-old, but to no avail.
Michael Henderson drowned.
Christie said in his role as site supervisor, King was responsible for the safety of everyone on the job.
‘He testified he is not a reader’
King had testified at trial he’d received no training from Springhill on his supervisory obligations, but also admitted he hadn’t read any of the safety manuals on site or the site-specific safety protocols and requirements.
“Mr. King acknowledged he had read none of that information,” Christie said.
“He testified he is not a reader.”
The judge noted the evidence also showed King was aware of the safety materials on site, as he showed Henderson where it was “and advised him if he wanted to read them, he could.”
King had contended his safety plan consisted of having someone at the top of the hole when someone was down there to pull them out in case something went awry.
But the judge said that plan fell incredibly short of any kind of reasonable safety plan.
“There must be a designated safety plan with a rescue team briefed,” he said, noting that wasn’t the case at the Barker Street treatment plan worksite.
Furthermore, Christie said, there had been meetings on site that King attended during which the pneumatic plug was discussed, with people emphasizing that if and when it was used, there should be bracing put in place to keep it from coming loose.
Perhaps the most striking piece of evidence about the risk of working in the hole while water was flowing and the plug was in use, the judge said, was written right on the plug.
It had warnings printed right on it, including the words, “Must stand clear when in use.”
‘Such a risk is foreseeable’
King also claimed he wasn’t familiar with the term “confined space” or the safety requirements triggered when a worker was in such a space, and the defence argued King’s lack of awareness that the eight-foot-deep hole met that definition was a factor in exempting him from criminal responsibility in Henderson’s death.
But Christie rejected that notion. Even by the most common-sense definition, he said, anyone would have known the hole was a confined space.
He noted an expert on workplace safety questioned why he was even asked to assess if the hole met the criteria for that, noting that professional reported it would be abundantly obvious to anyone who saw it.
King had also testified he told Henderson not to go back into the hole after lunch, but Christie didn’t accept that testimony, simply because Henderson did go back in for at least 20 minutes. Furthermore, King acknowledged that he knew Henderson had more work to do at the bottom of that hole when he allegedly told the teenager not to go back down there.
The safety risks for anyone in that hole at any time would have been obvious, the judge said.
“Such a risk is foreseeable,” he said. “Construction sites by their nature contain hazards.”
Christie accepted King’s evidence that his employer didn’t provide him with training necessary for someone at the supervisor level, but he nevertheless didn’t take steps to mitigate safety risks that would have been apparent to any reasonable person.
Furthermore, he said, a reasonable person in the position of site supervisor would have familiarized themselves with site-specific safety procedures and priorities, and King didn’t do that.
“The factor in this case which I find most difficult to understand is that Mr. King’s attention to the safety of Mr. Henderson on this occasion was nowhere close to what was minimally required of him,” Christie said.
“The death of Mr. Henderson resulted from a failure of Mr. King to know what he should do, and a failure to do what he should have known he had to do … Essentially, he did nothing he was required to do.”
The judge scheduled a sentencing hearing for Sept. 11, and he ordered the preparation of a pre-sentence report and victim-impact statements for consideration in that proceeding.
‘Everyone’s loved ones should return home from work’
Diane Henderson, Michael’s mother, was among the many family members and supporters present in court for Monday’s proceeding.
“Everyone’s loved ones should return home from work,” she told reporters after the decision, declining to comment further.
King had been free without any conditions after he was charged, but Crown prosecutor Christopher Lavigne broached that issue with the court Monday once the defendant was convicted.
He noted that since King had lost the presumption of innocence, the court ought to turn its attention to whether he should be remanded pending sentencing.
Defence lawyer Patrick Hurley said there have been no issues with King’s presence in the community up to this point and urged Christie to allow his client to remain free - albeit now subject to conditions.
Lavigne agreed that would be acceptable, and suggested the conditions be requirements to attend court, to keep the peace and be of good behaviour, and to have no contact with the victim’s family.
Christie agreed and imposed a release order with those conditions.
Springhill Construction is also facing a charge of criminal negligence causing Henderson’s death. Its Court of King’s Bench trial is scheduled for early next year.
King is no longer employed with Springhill, as he was let go following the incident.
Don MacPherson can be contacted at ftonindependent@gmail.com.
Such a tragedy that was 100% avoidable!