Worker Who Saw Mate Die In Workplace Death Loses Case

Francis Barker v Hercules Offshore Inc et al

Francis Barker knows about the lifelong trauma and torment that follows being forced to helplessly witness the death of a fellow co-worker, in this case his best friend of 20 years, Thomas Broussard.

No entity was found to be legally culpable for the anguish Barker suffered under Texas law.  Victims often seek answers, hope, resolution, closure and most of all ‘justice’ through the  system.  When they lose that battle for justice as Barker did they are  re-traumatised when their claims aren’t validated or defeated by legal niceties.

This is what happened to Francis Barker who not only lost his two year fight for justice, but was left to pay the legal costs of two of the wealthy and powerful defendants he brought suit against.

As reported by Courthouse News,  Francis Barker, a former welder, was left totally and permanently disabled after the incident which was the subject of his legal action. Subsequent to the traumatic incident which occurred in January 2008, he suffered a heart attack, which in turn caused him to suffer a cerebral stroke, believed to have been causally linked to the damage which flowed from a relative fleeting incident in his life.

He still bears the emotional scars from that incident which changed his life and seems likely to endure. Prior to the workplace incident which cruelly stole the life of his best mate and co-worker Thomas Broussard, Barker was part of a team of welders working for Frank’s Casing,  which provided services under contract to the defendants, known collectively as the Hall-Houston Group.

Barker’s life changed suddenly and dramatically when, on 28 January 2008, he was asked to conduct work on an offshore jack-up drilling unit, owned and operated by Hercules Offshore.  On the 28th January 2008,  he was rudely confronted by the shock, grief and senselessness, in a way perhaps only fully comprehended by persons who have experienced the effects of workplace deaths.

Barker and his friend were working together on the dismantling of an oil pan from the Hercules Offshore Drilling Rig, then attached to the seabed in Galveston Bay on the Outer Continental Shelf in the Gulf Of Mexico.  Plans were afoot to drill a well on the site so that oil production could proceed.

Tragedy struck when the pair were preparing the drill rig’s floor substructure in order to run a 60 inch casing pipe underneath the drilling floor.  They were required to firstly remove a pollution/oil pan. Barker was cutting up  some of the support structures of the pan directly above the ocean floor.  Barker’s life changed forever after what then occurred on the jack-up rig.

It is widely known that maritime work can be extremely dangerous.  There have been several companies who have maintained hiring schemes to employ foreign workers on the Outer Continental Shelf who are neither citizens or workers authorised to be in the United States. They have been employed under depressed wages and degrading working conditions.

Since 2008 there have been at least 75 personal injury claims filed against Houston based Hercules Offshore, 23 of which were filed in 2008,  40 in 2009 and 12 in 2010.

There were no lack of safety manuals and safety procedures dealing with the tasks which Barker and his co-worker were performing. Houston Offshore and the Hall-Houston  group had such manuals in their possession, including materials  mandating that safety meetings and pre-job plan meetings take place to ensure workplace safety.

It begs the obvious question why weren’t Barker and his co-worker given any instructions, manuals, diagrams or plans as to how the pan on the rig was actually supported, or how it’s removal was to be accomplished?

Why were there simply no communications systems at all in place between the parties?

Why wasn’t fall protection equipment supplied to the workers as they undertook the dangerous work over the ocean floor and asked for such equipment?

After a hole was cut in the drilling floor and whilst another hole was being cut in the oil pan, at about 5pm on 28 January, Broussard was instructed to cut the straps of the pan, the only items which supported it.

Under normal circumstances, the top edge of the oil pan is welded to the rig sub-structure to form a solid floor. This wasn’t the case and Barker asked Hercules Offshore’s driller to provide he and his mate with fall protection equipment.

At 5.30pm, when the last strap was in the process of being cut, Barker, who had been standing on the pan adjacent to Broussard placed his foot on a nearby beam, as he watched in horror as the pan Broussard was standing on plummeted to the ocean floor 100 feet beneath him.

Both Barker and Broussard managed to cling onto a beam with their fingers, Barker shouting in desparation at his mate, only two feet away from him to “hold on”.

He watched helplessly as his best friend and co-worker lost his grip, his fingers finally slipping from the beam. Francis Barkerr observed his friend plunge several feet into the ocean, striking a beam upon his descent into the ocean.

As alarms sounded on the rig, Francis watched the effortrs, which ended up being in vain, to rescue Broussard, before seeing the haunting vision of his friend’s body being lifted onto a boat on the rig and being flown out by helicopter.

Barker claimed he sustained grievous and permanent psychological trauma which afflicted him to the point of disabling him for the rest of his life. He looked for hope and justice in the Court system, suing Hall-Houston Exploration, two of the exploration company’s subsidiaries and the rig owner, Hercules Offshore with which Frank Casey had contracted to perform the work.

His legal battle commenced in a Court in Galveston County two years ago which he lost recently.

The first cause of action he pleaded was in negligence and gross negligence, listing several acts and omissions by managing agenets and employees of the Defendants, including breaches of Federal law, industry and company safety rules and regulations. He argued that a series of failures demonstrated a reckless disregard for he and his friend’s safety, entitling him to general, special and punitive damages under maritime tort law.

The second cause of action claimed, in the alternative, that the Defendant Houston Offshore, as the owner and operator off the rig, Hercules Drilling Rig 251, was negligent and the proimate cause of his injury, entitling him to compensation. He argued that the vessel owner owed duties to him, including but not limited to a “turn over duty”, a duty to warn him of dangers which wouldn’t be ovbious to a contractor, an “active control duty” and a positive “duty to intervene”.

The third cause of action was based on Texas tort law which Barker contended either complemented or could be substituted for the duties owed to him under maritime law which he referred to in his first and second causes of action.

The Judge, upon first hearing his case, arrived at the legal finding that general maritime law did not apply to the Plaintiff’s claims and that any rights Barker may have had were therefore moot under the Longshore And Harbor Workers Compensation Act (LHWCA) derived through the Outer Continental Shelf Lands Act (OCSLA).

The OCSLA governs those who work on oil drilling platforms and other fixed structures beyond state maritime boundaries, where they are able to establish a substantial nexus between an injury and an employer’s extractive operations on the Outer Continental Shelf.

With the prospect of maritime law having been removed, the tort of negligence was to be heard and determined againt Hall-Houston and Houston Offshore by the US District Court in the Southern District of Texas.  Barker also appealed the application of maritime law.

The defendants successfully argued that pursuant to the OCSLA, the applicable law was the law of the adjacent state, in this case the law of Texas, which meant  that the Plaintiff’s cause of action for damages for the infliction of emotional distress was barred for reasons contained in Chapter 95 of the Texas Civil Practices and Remedies Code. (§ 95.003 – Liability For Acts Of Independent Contractor)

This provision was introduced as part of State tort law reform in 1996 to limit the liabilities of property owners. The Judge accepted the argument that Hall-Houston Exploration Partners, an LLC, the general partner of Hall-Houston Exploration II, L.P. had no involvement in the work and/or circumstances surrounding the incident and did not have any contract for or take part in any work that was being undertaken during the fatal incident.

Additionally, Hall-Houston group argued that Hall-Houston Exploration Company was not a legal entity in existence and that the Plaintiff had sued the wrong parties, as even if there was such an entity in existence, it didn’t have any involvement in the incident or any contract in place, nor did it take part in the work that was being undertaken during the fatal incident.

Their simple argument was that the Plaintiff wasn’t an employee of theirs as there was no contract and no involvement on their part.  At the time of the incident Hall-Houston said although it had a contract with Hercules Offshore to finish drilling Rig 251 with equipment, so that Hercules could drill offshore wells, Barker was employed by Frank’s Casing, not Hall-Houston.

Both Hall-Houston and Hercules Offshore persuaded the Judge that they should be disavowed of any legal liability as  Barker wasn’t an employee of theirs at the time of the incident.

Hall-Houston conceded they had a contract with Hercules to finish drilling Rig 251 with equipment,  so that Hercules could drill offshore wells, but that Barker was employed by Franks casing, not Hall-Houston. Hall-Houston and Hercules both claimed they did not have any involvement in work conducted by either Frank’s Casing or Barker.

Chapter 95 of the Texas Civil Practices and Remedies Code was amended in 1996 to provide increased protection for property owners so that they were not held accountable or liable for injury suffered by independent contractors, unless three elements are present, being control, actual knowledge and a failure to warn of a safety risk.

The Judge was satisfied by the defendants’ arguments that they did not exert sufficient control, have actual knowledge or sufficient supervisory control to be held liable.

Prior to the amendments, claims known as ‘premises liability claims‘ by injured independent contractors doing work for the owner of a premises or a contractor were commenced under Texas’ state common law.  The general position at common law was that the premises’ owner did not have any duty to make sure an independent contractor performed work in a safe way, unless either the property owner or contractor controlled the independent contractor’s methods of work and failed to take reasonable care in doing so.

Houston-Hall claimed that Hall-Houston Exploration II LP was assigned “operator rights” for the southwest one-quarter of a nominated Lease in addition to being the Operator of Record for the area, and used the area to produce market oil and gas. It therefore argued that it was a ‘property owner‘ within the previous common law definition and Chapter 95, as it has a mineral interest in the land and a concomitant entitlement to reasonable use of the surface estate.

The Judge agreed with this analysis and that this was the exclusive basis of any possible liability in negligence available to Barker as an independent contractor as Chapter 95 precluded him from bringing an action in common law negligence.

The Court acknowledged that there will be some circumstances where the premises owner does have liability, namely where they exercise a degree of supervisory control over the work being performed on the property, however that right to control must relate to the accident causing the injury and further involve either the power to direct the work be done in the order it is to be done, or forbid it being done in an unsafe manner.

The Judge heard argument on the question of supervision, however Hall-Houston and  Hercules managed to convince the Court that it did not actually have the requisite degree of supervisory control, based largely on the fact that there was no contract in existence conferring such control upon them over either Frank Casing or Barker.

Hall-Houston did, as Barker pointed out, bring in a company representative from a third party to be present onsite to ensure that the other independent contractors were performing their work.  However, they were successful in persuading the Judge that the mere fact that such a representative was present to observe the work didn’t equate to actual control.

Hall-Houston and Hercules also defeated Barker’s claim for the tort of negligent infliction of emotional distress as Texas law does not make provision for recovery of damages by a Plaintiff who doesn’t satisfy the eligibility requirements for what is known as ‘bystander recovery’.

To succeed on such a claim a bystander who witnesses another person suffer injury or a fatal accident and suffers mental anguish must be located at the scene of the accident, suffer shock as a result of the impact upon them from a sensory observance of the accident and be a close family member.

Barker’s fight for justice ended and through legal niceties and technicalities a number of entities wiped their hands of any responsibility for what happened in Court.

Meanwhile the nightmare, grief and suffering continues for the family and other loved ones of Thomas Broussard who lost his life.

There are many bodies across Australia and in the US which are working hard to document more accurately the number of workplace fatalities and injuries which occur each year, setting up support groups to assist families, loved ones and fellow workers navigate systems whilst trying to juggle coming to terms with the overwhelming sense of loss that inevitably accompanies a workplace tragedy leading to serious injury and/or death.

The legal system can often lead to decisions which causes victims to feel more aggrieved. In Barker’s case, there were several entities which were powerful and well resourced who  involved in co-ordinating inherently dangerous operations which took his friend’s life.  The emphasis should be on preventing workplace related deaths and injuries by taking responsibility and learning lessons to prevent such incidents recurring.

It is important as ‘The Workplace Family and Support Group’ have acknowledged in their kit titled “HOW COULD THIS HAPPEN?”,  to develop a voice to make positive changes to Employers, Unions, Workers, Governments – “anyone who will listen” for the safety of future workers.

The kit provides emotional support and practical resources to assist families and loved ones understand the procedure which follows a workplace death, including the role played by various bodies such as WorkCover NSW, the Police, Coroner, the Industrial  Commission and Lawyers.

Safe Work Australia have released several comprehensive reports estimating the numbers of workers and bystanders killed each year due to work-related injuries, drawing from data sets in recognition of the fact that not all traumatic work-related fatalities are notified to work health and safety authorities.

The same phenomenon of underreporting of workplace injuries, illnesses and work-related deaths has been recognised by the U.S. Occupational Safety and Health Administration (OHSA) who are developing initiatives to target this shortcoming.

Workplace health and safety, particularly in high risk occupations such as the oil, gas and mining sectors are in need of urgent attention. As these industries boom, so too do the rate of workplace fatalities, as recognised in report  released recently as reported by the New York Times.

The report found that Wyoming work sites lacked what was called a culture of safety and that proper safety procedures were not followed in the vast majority of cases when someone was killed on the job.

The observations in the report underscore the importance of a healthy workplace culture in which workplace risks and hazards are treated with more than just a tokenistic attitude throughout an organisation, irrespective of whether the risk or hazard is workplace bullying or working in a mine.

As poet Don Merrell highlights through his poetry, speaking up about unsafe acts can save lives and help develop a positive safety culture. The following poem is a  ‘I Chose To Look The Other Way’ poses a powerful message that is delivered straight to the heart.

I Chose to Look The Other Way

I could have saved a life that day,
But I chose to look the other way.
It wasn't that I didn't care,
I had the time, and I was there.

But I didn't want to seem a fool,
Or argue over a safety rule.
I knew he'd done the job before,
If I spoke up, he might get sore.

The chances didn't seem that bad, 
I'd done the same, He knew I had.
So I shook my head and walked on by,
He knew the risks as well as I.

He took the chance, I closed an eye,
And with that act, I let him die.
I could have saved a life that day,
But I chose to look the other way.

Now every time I see his wife,
I'll know, I should have saved his life.
That guilt is something I must bear,
But it isn't something you need share.

If you see a risk that others take, 
That puts their health or life at stake.
The question asked, or thing you say,
Could help them live another day.

If you see a risk and walk away,
Then hope you never have to say,
I could have saved a life that day,
But I chose, to look the other way.
Don Merrell


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