Hindsight is 20/20: Employers walk a fine line when it comes to vicarious liability

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Everyone knows hindsight is 20/20. And foresight is sometimes a matter of common sense. But there can be a fine line between common sense foresight and being psychic, so how does one determine whether the outcome of an event could have been prevented and how responsible are those who might have foreseen it?

This issue is particularly important for employers when considering their liability for the actions of employees, especially those who work independently off-site. How much control can the employer be expected to have?

On Dec. 7, 2007, Daniel Tschetter of Cochrane, Alta., drove his cement truck into the back of a car waiting at a red light. The accident killed five people in the car, including three children. Witnesses said he had been driving recklessly for several kilometers before the crash and after it happened, he took a drink from a vodka bottle and tried to destroy it in the hopper of the truck.

It turned out Tschetter had 20 previous convictions for traffic offences, was a recovering alcoholic and had been fired from a previous job after being involved in another accident while driving a cement truck. His employer, C & J Construction, was aware of his history but continued to employ him as a driver.

After Tschetter was convicted of manslaughter, families of the accused launched a lawsuit against him and C & J for a total of $3.6 million. In their statement of claim, the families accused the employer of being negligent in allowing Tschetter to drive the truck and transport alcohol in it though it should have known he posed a risk to other drivers on the road given his history of bad driving and drinking.

It’s pretty clear the construction company showed poor judgment if it did allow him to have alcohol in the truck, and perhaps for hiring him in the first place. But should it have predicted the accident would happen? What if Tschetter had convinced the company he deserved another chance before it hired him?

The accident brings to mind a 2007 case where an employee of Victoria-based road-building company Island Slipform fired an employee after he got into an accident in a company truck while driving impaired. Island Slipform was concerned not only that he downplayed the incident, but also that it had “a direct and material interest in if its equipment were involved, or if its employees were engaged in conduct which was detrimental to its reputation.”

The company was also likely concerned of the role its equipment might have played in any potential liability for any injuries suffered by the other driver.

Given the trend in legislation dealing with workplace violence, occupational health and safety and using electronic devices while driving, liability for employee misconduct is on a lot of employers’ minds. But we should remember employees are autonomous individuals, even while on the job. Employers can definitely be responsible if something bad happens from an employee’s actions that come directly out of directions from the employer. But what if the conduct wasn’t condoned by the employer? How much should the employer be expected to take responsibility for something caused by an employee’s independent actions, even if they’re on the job?

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