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Legal report: labour & employment - An accident waiting to happen

|Written By Helen Burnett

Lawsuits haven’t really hit Canada yet, but U.S. companies are already finding themselves liable for employees who have automobile accidents while talking on their cellphones.

Advances in wireless technology and the demands of the modern workplace have taken the office to places that, up until a few years ago, it had never been before. People now can essentially do their jobs anytime and anyplace. But should a person’s work follow them behind the wheel? Many labour and employment lawyers across the country say it’s a hot issue and one Canadian employers need to watch out for.


With the increased popularity of PDAs and BlackBerrys, the tolerance level for an employee taking their time to return a message has decreased, says Tina Giesbrecht, a partner in the labour and employment group at McCarthy Tétrault LLP’s Calgary office. “It’s not hard to see people using it during their commute or during the day when they’re off to meetings, and that kind of thing. Our workplace moves so quickly,” she adds.


Russel Zinn, a senior partner in Ogilvy Renault LLP’s employment and labour law practice in Ottawa, says Canadian employers should be paying attention. “This is the concern that the employer has to have, that if it has employees out on the road, as many companies do, and they’re constantly . . . or regularly on their cellphones, its only a matter of time before there is an accident, whether its related to their cellphone or not. We’ve certainly been advising our clients, as part of the risk management advice that we give them, that this is a critical area.”


The Canadian Centre for Occupational Health and Safety has flagged cellphone use while driving as a safety hazard, noting that the potential for injury and property damage should be a concern for employers. While there haven’t been any Canadian cases on employer liability for employees who’ve crashed while talking on the phone for work purposes, there have been several in the U.S.


Three years ago, law firm Cooley Godward LLP settled for an undisclosed amount after a 15-year-old was struck and killed by a lawyer as she was driving home and making a business call on her mobile. The lawyer was ordered to pay the victim’s family US$2 million. She also served a one-year sentence and lost her licence to practise law. In 2001, the state of Hawaii paid a New Jersey man US$1.5 million for injuries he suffered after being struck by a teacher, who had just finished using her cell on the way to work. The same year, Arkansas lumber company Dyke Industries lost a US$21-million lawsuit (later settled for US$16.2 million) after a 78-year-old woman was struck by a vehicle driven by one of the company’s salesmen, who was using his phone for a sales call.


Hugh Christie is leader of the national practice group for employment and labour law at Gowling Lafleur Henderson LLP in Toronto. He says there are two sources of liability an employer can run into here. The first is pure vicarious liability, where the car is used by an employee, on work time, and the phone is used for work purposes. In this case, the employer might be found vicariously liable, as it is responsible for the employee while at work. Equally or perhaps more serious, he says, is direct liability flowing from an employer owning the car, or an employer who is providing the cellphone to the employee and aware that they are making calls to customers.

“Even worse would be participating in, say, a conference-call meeting, an internal meeting of the employer while driving,” or, Christie adds, being expected to call into a regularly scheduled meeting when the employer knows that the employee is on the road at that time.


A study published in the British Medical Journal in 2005 says a person using a mobile phone is four times more likely to have a crash that will involve a trip to the hospital, and that the use of hands-free sets does not seem to reduce the risk. A similar study, carried out at the University of Utah and published last year, found that people who drive and talk on the phone are as impaired as those with a blood-alcohol level of 0.08 per cent. The study also noted hands-free sets are as distracting as hand-held cellphones, as the conversation distracts the driver.


This finding, says Zinn, could  be an interesting aspect of litigation, as many employers think that if a hands-free phone is in the car, there is no problem. “That, on the basis of this study, assuming this holds true, is not going to exempt the employer from any liability whatsoever,” he says. “Based on the research that’s coming out, there will be a claim advanced against the employer in cases where there have been serious injuries that require many millions of dollars of compensation to support the injured person for the rest of his or her life, so it’s a real concern — employers need to be aware of this.”


What clients need is a policy that sets out the limitations on cellphone use, says Zinn. A cautious-use policy, such as requiring the use of hands-free sets and asking employees to keep calls short or pull over to the side of the road, shows the employer is aware of the risk and should reduce its exposure, potential liability, and the likelihood of an accident. It won’t, however, absolve the employer of liability if the employee is on a business call.


Giesbrecht says her group has given opinions to clients and created policies to help educate them about potential liability and how to implement policies that will limit these types of incidents.


Christie says there isn’t much concern for this issue being expressed by clients, but that doesn’t mean the firm isn’t thinking about it. So far, he says, he has not seen many employers in Canada starting to institute policies on cellphone use while driving.


The Alberta-based Coalition for Cell Phone Free Driving, formed in 2005, lists several companies in that province as “members,” which have instituted policies that ban the use of hand-held or hands-free cellphones by employees while driving on company time. Some of these companies include Husky Energy, Finning Canada, and the Calgary Health Region.


Provinces are also starting to become aware of the issue, says Zinn, as Quebec recently tabled legislation that, if passed, would make it an offence to drive while speaking on a hand-held cellphone. So far, however, Newfoundland is the only province to institute a full ban on using cellphones while driving. That ban became law in 2003. In Ontario, a 2006 private members bill prohibiting the use of cellphones while driving never passed.

“To the extent that [provinces] are recognizing it, I think employers need to be out in the forefront of this to put these policies in place and to get their employees some guidance as to what the expectations are, from a corporate standpoint,” says Zinn.


Because there’s already been litigation, American clients are more attuned to the issue, says Giesbrecht. Indeed, many major U.S. employers, such as universities and hospitals, have already instituted policies regarding employees’ cellphone use while driving. Zinn suspects this is a direct result of the lawsuits over the last few years. “Unfortunately, it’s the way of the world — it takes a huge lawsuit and judgment for some people, some organizations, to open their eyes. We’re trying to be a bit seeing-forward, as to what may happen, to advise our clients as to how they can reduce their risk before they’re the ones on the front page.”


Johan Lubbe, a partner with law firm Jackson Lewis, in White Plains, N.Y., says, over the last couple of years, the firm has seen a number of clients asking them to look at, prepare, and update such policies. There’s not been a dramatic response to the lawsuits but Lubbe notes his firm has seen a steady flow of clients looking at the issue and that this is one of the policies the firm has recommended employers look at, either as a freestanding policy or as part of a telecommunications procedure.


Policies should have within them, as a first statement, a requirement to comply with all state regulations, including those pertaining to the use of cellphones, says Lubbe. At the moment, five U.S. states have banned the use of cellphones while driving. With the law as the backdrop, Lubbe says employers’ policies also have to make sure that, to the extent employees use wireless devices while driving during work hours, they limit that use, don’t get involved in prolonged discussions, preferably pull off the road for extended conversations, and always use a hands-free device. Lubbe also recommends policies with clear provisions for not using cellphones in traffic or during inclement weather.


For the moment, the U.S. tends to be ahead of Canada in litigation, but it’s only a matter of time, says Giesbrecht. “I don’t think we need to wait for big damage awards to know that this is an issue that employers should be addressing [by] educating employees and minimizing their own risks.”


There have already been a few low-key cases in Canada involving accidents and resulting in litigation, she says. “I think it is already here, and so you’d definitely, as an employer, would want to keep up on potential legislation and also case law.”


The use of a hand-held device’s other, non-voice functions also calls for employers to look at their policies, he says. Text messaging and the like could be regulated somewhat differently than the device’s phone capacity — a limited use policy, for example, as opposed to a total ban on use while driving.


Insurers, which generally would provide the liability coverage in such cases, should also be concerned about this issue, says Christie.

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