On the hook: employer liability for traffic accidents caused by cell phone usage 

publication 

September 2012

Employment and Labour Bulletin
The bulletin was originally published in the Canadian HR Reporter.
Lyndsay A. Wasser, Rachel A. Gold, student at law
The bulletin was originally published in the Canadian HR Reporter

Employers can be held liable for the negligent, and even illegal, actions of their employees. In Canada, all provinces and territories (except Nunavut) have enacted laws banning the use of cell phones, blackberries and other hand-held electronic devices ("Hand-Held Devices") while operating a vehicle. This relatively recent legislation was passed in response to growing concerns regarding distracted drivers. Studies have shown that: (i) drivers using Hand-Held Devices are almost four times as likely to be involved in an accident than drivers whose attention is focused on the road; and (ii) drivers using Hand-Held Devices are equally if not more dangerous than drunk drivers.

Legislation in each jurisdiction ("Hands-Free Legislation") generally imposes fines upon drivers who are found to be using Hand-Held Devices while driving. However, such fines may be the least of an employer's worries, if an employee is involved in a traffic accident while driving a company vehicle or performing employment duties in his/her own vehicle.

potential liability

There are two potential sources of employer liability for employee traffic accidents in Canada: (i) statute and (ii) common law.

statute

Firstly, 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, where an employee is driving a company car and is involved in a traffic accident, the employer can be held liable for any resulting loss or damage.

Secondly, employers may 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, however, 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 "(e)very 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, employers may face liability if an employee is injured while driving and utilizing a Hand-Held Device, if the employer does not take appropriate precautions.

  • Workers' Compensation Legislation: Employees who are injured in the course of employment may be eligible for workers' compensation benefits. Serious claims and/or multiple claims can impact an employer's premiums and/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,1 which held that employers are vicariously liable for: (a) acts of employees that are authorized by employers, or (b) 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:

  • Ontario: In Walker v Ritchie,2 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 its employee, totaling over $1 million.

  • Alberta: In Hoefling v Driving Force Inc,3 an employee who was driving while impaired, drove through a red light and hit another vehicle in the course of returning his employer's rental 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 U.S. cases have considered the specific issue of employer liability for traffic accidents caused by an employee using electronic devices while driving. For example:

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

  • Missouri: In 2008, an employee-driver of 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 by employees who operate vehicles and cause traffic accidents while using electronic devices in the course of their employment.

reducing the risk

Employers can reduce the risk of liability for traffic accidents by: (1) providing hands-free devices to employees who regularly drive in the course of employment; (2) implementing appropriate driving policies; (3) training employees on applicable laws and policies; and (4) 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 cell phones and similar devices while operating a vehicle (except in emergency situations).

  • Expressly state the consequences for violations of the employer's policy.

In addition, ideally, employees should be required to sign an acknowledgement that they have received the required training and policies, and that 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.

conclusion

Although every case will be decided on its own facts, the measures outlined above 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: (1) in the event of a civil action by a third party, the employer could take the position that it should not be held vicariously liable for the accident because the employee was not authorized to utilize a Hand-Held Device while driving; and (2) in the event of a claim, complaint or charge under the health and safety legislation described above, the employer could take the position that 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.

1 [1999] 2 SCR 534, 174 DLR (4th) 45.
2 (2003), 119 ACWS (3d) 252.
3 2005 ABQB 802, [2006] AWLD 132.

by Lyndsay Wasser

cautionary note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2013