Employer implicated in fatal crash

Parents of children killed by truck driver say employer should have known he was a risk

A Calgary construction company is being sued by the families of five people killed by one of its truck drivers after the driver was convicted of manslaughter.

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 9, 6 and 16 months. 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 that caused 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 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.

Employer should have known risk: Parents

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. The statement said Tschetter had “an extensive record of past traffic infractions,” 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. The lawsuit claimed C & J was liable because it was aware of this information and didn’t take it into account when it hired him.

The lawsuit also claimed the company was implicit in supplying Tschetter with alcohol and allowing him to transport it in the company truck. It was reported in the trial that 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.

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, he admitted that sometimes construction companies exchanged gifts of alcohol with cement plant staff, 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,” the statement of claim said.

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, says Laurie Robson, a partner in the Employment and Labour Group of Borden Ladner Gervais in Calgary.

What’s to be decided in court is if the employer has additional liability because of anything it did to contribute to the circumstances leading to the accident.

Though Tschetter’s past driving infractions would not have shown up on a criminal record check, C & J could have dug deeper 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, says Robson.

“An important issue with this case is that 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,” says Robson. “How far to go into their personal life — to check on driving offences and training for vehicles — is tied to the job duties.”

Employer can’t perceive a disability without reason

The fact C & J knew Tschetter had problems with alcohol and it was available through gift exchanges does not necessarily increase the company’s liability if it didn’t have reason to suspect there was any problem on the job, says Robson. C & J’s owner testified that Tschetter was a good driver and he didn’t drink while working. Having knowledge of alcohol being exchanged as gifts was not a sufficient reason to mistrust an employee and search for problems without reason — a leap of liability Robson says would be going too far. Assuming that 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, says Robson.

“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,” says Robson.

The allegations raised in the lawsuit will be debated extensively in court and the extent of C & J’s liability for the accident and the resulting deaths remains to be seen. However, other employers in similar circumstances can reduce their own liability with proper policies, checks and training, says Robson.

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 are reasonable if they are tied to the job duties from the beginning, says Robson.

“Employers need to look at all of their policies when they put somebody in a potentially dangerous environment (on the road),” says Robson. “What are they doing to ensure the employee is and will continue to be a good and safe driver?”

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