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New expert, changing testimony sunk Crown's case against Kiewit

Russell Hixson
New expert, changing testimony sunk Crown's case against Kiewit

According to the BC Prosecution Service (BCPS), the loss of a critical witness and changes in testimony caused the Crown’s case against construction giant Kiewit for the death of a worker to collapse.

On Aug. 31 the BCPS announced that a stay of proceedings had been entered in the case against Peter Kiewit Sons ULC (Kiewit), Timothy Rule and Gerald Karjala.

The parties were charged with criminal negligence causing death after Samuel Fitzpatrick was struck and killed by a boulder in 2009.

According to documents from the service, the heart of their case for the death of 24-year-old Fitzpatrick stemmed from a blasting and slope stabilization expert that was retained by the RCMP during its investigation. The expert believed Kiewit and its managers were negligent and that poor communication and bad site co-ordination were key factors in Fitzpatrick’s death by a falling rock at a hydroelectric project site.

When charges were first filed, the Crown’s theory was that an excavator operator moved his machine to a position above the drill and blast crew disturbing the loose material that had been piled previously near the treeline. The rock later moved from that loose material and killed Fitzpatrick.

The Crown planned to argue that Kiewit and its managers violated rules regarding not having crews work above each other.

“The available evidence indicated that the most likely cause of the unstable rock being dislodged was a combination of rain, gravity, thawing, and the vibrations from the excavator and the drilling,” said the Crown in a statement, adding the expert said the site’s managers should have been aware of the risks and addressed them.

But things changed in April when the expert died and a new expert took their place.

The new expert believed it was possible site activity contributed to the rock falling, but felt evidence was lacking and it was most likely due to natural freeze-thaw cycles loosening material. The expert also noted its possible the rock came from a much further location where site activity wouldn’t have been a factor.

The expert did not give an opinion on Kiewit’s work plan for the site which were not available for review. However pretrial interviews revealed these documents existed but were not obtained during the investigation and the Crown did not have them.

The expert also was not confident that the excavator’s position constituted technically being above the other crew or that the two managers who were charged were responsible.

Pretrial interviews in July also threw a wrench into the prosecution’s case.

Witnesses had difficulty remembering details of the 2009 incident or added substantial changes to their testimony. This included the location of the excavator, the level of communication from managers or where the rock came from.

“The memories of witness have degraded significantly,” stated the Crown. “There was a delay of almost six years in initiating an RCMP investigation (February 2009 to December 2014) and another two-and-a-half-years until the Crown had all the material it needed from police.”

The Crown also noted that several witnesses were still Kiewit employees or consultants and their recollections were “limited or self-serving.”

The lack of consistency in witness accounts proved to be a major barrier, Crown officials said, which made it so they could not exclude the possibility that the rockfall was a random event originating outside of the work zone.

“The evidence available now is not capable of proving essential elements of the offences charged against each of the accused,” stated Crown officials. “In making this assessment Crown Counsel have not only considered their original theory but also all possible alternative theories and methods of proof.”

 

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