A Calgary construction company is being sued by the families of five people who were killed by one of its truck drivers.
On Dec. 7, 2007, Daniel Tschetter, 51, a truck driver for C&J Construction, drove his cement truck into the back of a car stopped at a red light. The accident killed five people in the car, including three children aged nine, six and one. Witnesses said Tschetter had been driving recklessly for several kilometres before the crash, including passing a tanker truck on the left shoulder of the road, causing other drivers to get out of the way. In his trial, Tschetter admitted he had been angry and frustrated over delays at the construction site from which he was returning that day.
After Tschetter was convicted of manslaughter and sentenced to six years in jail, the surviving parents of the children killed filed a civil lawsuit against both Tschetter and C&J Construction for more than $3.5 million.
The statement of claim for the lawsuit, which was filed Oct. 19 and has yet to be proven in court, claimed the construction company should have known Tschetter posed a risk on the road. He had “an extensive record of past traffic infractions,” said the statement, including 20 previous convictions for traffic offences, and he was an alcoholic who had been fired from a previous job as a cement truck driver after being involved in another accident. C&J was liable because it was aware of this information and didn’t take it into account when it hired him, claimed the lawsuit.
The company was also implicit in supplying Tschetter with alcohol and allowing him to transport it in the company truck, claimed the lawsuit. After the crash, Tschetter took a drink from a vodka bottle and threw it into the hopper of the truck in an attempt to destroy it, it was reported in the trial.
C&J’s owner said Tschetter was one if its better drivers and, though the company knew of his alcohol issues, he didn’t drink while working. However, sometimes construction companies exchange gifts of alcohol with cement plant staff, admitted the owner, which may have been why Tschetter had alcohol in the truck with him.
“C&J knew or ought to have known that for a recovering alcoholic, this would pose a particular temptation,” said the statement of claim.
Civil lawsuit against employer not surprising: Lawyer
The civil lawsuit implicating C&J is not surprising, since Alberta’s Traffic Safety Act automatically attributes statutory liability in a vehicle accident to the registered owner of the vehicle, said Laurie Robson, a partner in the employment and labour group of Borden Ladner Gervais in Calgary.
The element to be decided in court is whether the employer has additional liability because of anything it did to contribute to the circumstances leading up to the accident.
Though Tschetter’s past driving infractions would not have shown up on a criminal record check, C&J could have inquired about them because they were related to his job duties. An employer has a duty to ensure an employee has the ability to do a job safely and if it doesn’t do an adequate check, it could increase its liability, said Robson.
“Anytime an employer puts an employee in a vehicle for work, it needs to take reasonable steps to ensure the employee is licensed, has a proper class of licence and ensure the employee can drive it safely on the road,” she said.
“How far to go into their personal life — to check on driving offences and training for vehicles — is tied to the job duties.”
Knowing alcohol was being exchanged as gifts was not a sufficient reason to mistrust an employee and search for problems without reason — a leap of liability that would go too far, said Robson. Assuming his past problems with alcohol would make him unable to control himself — perceiving him to be disabled without reason — would risk a human rights violation, she said.
“Any knowledge that causes reasonable suspicion raises a safety issue, but the employer doesn’t have to turn over every rock to see if something is hiding there,” said Robson.
However, other employers in similar circumstances can reduce liability with proper policies, checks and training, she said.
When hiring employees who will be operating company vehicles, employers should conduct background checks for driving infractions and driving-related criminal convictions. A driving test for applicants and regular re-testing are also good ideas and reasonable if they are tied to the job duties from the beginning, said Robson.
“Employers need to look at all of their policies when they put somebody in a potentially dangerous environment (on the road),” she said.
“What are they doing to ensure the employee is and will continue to be a good and safe driver?”
© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.