Taking hold of hands-free devices

Employers can be on the hook for unsafe driving behaviour of employees
By Lyndsay Wasser and Rachel Gold
|Canadian HR Reporter|Last Updated: 10/10/2012

Employers can be held liable for the negligent, and even illegal, actions of employees. And in Canada, all provinces and territories (except Nunavut) have enacted laws banning the use of cellphones, BlackBerrys and other hand-held electronic devices while operating a vehicle.

Legislators across the country took these steps in response to growing concerns regarding distracted drivers. A 2005 study of drivers in Australia — conducted by the Insurance Institute for Highway Safety, an Arlington, Va.-based non-profit agency dedicated to reducing death and injuries from crashes — found those using hand-held devices were almost four times as likely to be involved in an accident than drivers whose attention was focused on the road.

Another report out of the University of Utah in Salt Lake City in 2009 found using a cellphone while driving to be just as dangerous as driving drunk.

Legislation across Canada generally imposes fines upon drivers who are found to be using hand-held devices while driving. However, these fines could be the least of an employer’s worries if a worker is involved in a traffic accident while driving a company vehicle or performing employment duties in his own vehicle.

There are two potential sources of employer liability for employee traffic accidents in Canada — statute and common law.

Statute

Under provincial motor vehicle/highway traffic statutes, the owner of a vehicle, among others, is responsible for loss or damage caused by any person operating the vehicle. Therefore, if an employee is driving a company car and involved in a traffic accident, the employer can be held liable for any resulting loss or damage.

Employers may also be held liable for employees who are injured while driving in the course of employment under the following legislation:

Health and safety legislation: Occupational health and safety statutes vary by province and territory, but such legislation generally includes a basic duty to take reasonable precautions to protect the health and safety of workers.

In addition, the Criminal Code provides that “every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.”

For these purposes, “every one” includes employers, senior managers and supervisors. Therefore, if an employer does not take appropriate precautions, it may face liability if an employee is injured while driving and using a hand-held device.

Workers’ compensation legislation: Employees who are injured in the course of employment may be eligible for workers’ compensation benefits. Serious claims or multiple claims can impact an employer’s premiums or experience rating.

Common law

Employers can be held vicariously liable or directly liable for the actions (and omissions) of employees under the common law. The leading Supreme Court of Canada case on this issue is Bazley v. Curry, which held that employers are vicariously liable for employee acts that are authorized by employers or unauthorized acts that are sufficiently related to the conduct authorized by employers.

Although no Canadian cases have applied this test to accidents caused by employees who violated hands-free legislation, employers have been held vicariously liable for other types of traffic accidents. For example:

• In Walker v. Ritchie in Ontario, an employee driving a tractor-trailer in the course of employment collided with another car, catastrophically injuring the 17-year-old driver. The employer was found responsible for all of the damages caused by the employee, totalling more than $1 million.

• In Alberta’s Hoefling v. Driving Force Inc., an employee who was driving while impaired in the course of returning his employer’s rental vehicle drove through a red light and hit another vehicle. The employee was convicted of impaired driving in criminal proceedings and, in a separate civil action, the employer was held vicariously liable for the employee’s negligent driving.

In addition, several cases in the United States have considered the specific issue. For example:

• In Georgia in 2002, an employee reaching for his mounted, hands-free device (provided by the employer) to receive a voicemail message slammed into another vehicle on the way to work, injuring a passenger in the other vehicle. The employer settled the claim for $4.75 million.

• In Missouri in 2008, an employee driving a tractor-trailer was checking text messages on his phone when he caused a multi-vehicle collision on a highway, killing three people and injuring more than 10 others. The employer was found vicariously liable in a number of actions, including $18 million awarded to a severely injured plaintiff, $6 million awarded to a deceased individual’s family and $700,000 awarded to an individual who suffered broken bones. The employer went out of business the same year.

Although U.S. cases are not binding upon Canadian courts, they illustrate the potential liability of employers for traffic accidents caused by employees who operate vehicles while using electronic devices in the course of their employment. They also highlight the risk for Canadian organizations with employees in the U.S.

How employers can reduce the risk

Employers can reduce the risk of liability for traffic accidents by:

• providing hands-free devices to employees who regularly drive in the course of employment

• implementing appropriate driving policies

• training employees on applicable laws and policies

• consistently enforcing applicable policies.

In particular, policies and training respecting the use of electronic devices while driving should, at a minimum:

• be provided to all new employees, with reminders periodically provided to existing employees

• provide information to employees respecting applicable hands-free legislation and expectations for compliance with such laws, including a clear prohibition against using hand-held devices while operating a company vehicle or driving in the course of employment

• specify whether and to what extent hands-free devices are permissible, and provide training on the appropriate use of such devices — however, since employees are at an increased risk of accidents even while using hands-free devices, if practicable, the most prudent course of action may be to ban all use of cellphones and similar devices while operating a vehicle (except in emergency situations)

• expressly state the consequences for violations of the employer’s policy.

In addition, employees should ideally be required to sign an acknowledgement they have received the required training and policies, and they understand the information that was provided to them, including the consequences of non-compliance with applicable laws and policies.

Furthermore, driving policies should be consistently enforced, as a policy can only go so far if an employer condones violations.

Although every case will be decided on its own facts, these measures may provide a defence to an employer in the event of a traffic accident caused by an employee who does not comply with hands-free legislation.

In particular, in the event of a civil action by a third party, the employer could take the position it should not be held vicariously liable for the accident because the employee was not authorized to use a hand-held device while driving and, in the event of a claim, complaint or charge under health and safety legislation, the employer could take the position it took reasonable steps to protect the health and safety of employees operating vehicles.

In addition, appropriate workplace policies and training may reduce the probability of accidents occurring, thereby improving the overall safety of employees.

Lyndsay Wasser is a partner in the employment and labour relations group and Rachel Gold is a student-at-law at McMillan in Toronto. Wasser can be reached at (416) 865-7083 or lyndsay.wasser@mcmillan.ca. For more information, visit ww.mcmillan.ca.

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