Canadian Safety Reporter

3 Employer has vicarious liability for employee's car accident — not car's owner Auto repair shop had control and responsibility for employee's actions while taking customer's vehicle for test drive BY JEFFREY R. SMITH AN ALBERTA court has quashed a lawsuit against the owner of a vehicle that was in an accident while being driven by a mechan- ic, finding the mechanic's em- ployer is vicariously responsible for all damages. On April 23, 2012, Carlyle McIntyre brought his vehicle to Calgary Propane and Auto- motive (CPA) to have its brakes serviced. McIntyre gave the keys to his vehicle to Lewis Morgan, a mechanic for CPA, so he could secure it in preparation of the brake job. Morgan completed the re- pairs and decided to take the ve- hicle for a test drive to ensure the brakes were functioning proper- ly. However, during the test drive he collided with a vehicle driven by Brent McIver, who was also on the job. McIver was injured in the accident. The Alberta Workers' Com- pensation Act prevents employ- ers and employees from legal action by others who are also covered under the act, in ex- change for coverage for benefits. Because both McIver and Mor- gan were working when the ac- cident occurred, they were both covered by the act. Since McIver was barred from taking legal action for negligence against Morgan and CPA, he sued McIntyre — the customer whose vehicle Morgan was driv- ing — for vicarious liability for damages he suffered, as the own- er of the vehicle involved in the accident. McIntyre's automobile insurance excluded individuals engaged in the repair of vehicles, as Morgan was when the ac- cident occurred. CPA had em- ployer's insurance the covered the cost of the damage to Mor- gan's vehicle but it didn't cover employee drivers. McIntyre sought apportion- ment of vicarious liability to CPA, as there was a clause in the Worker's Compensation Act that stated "if the court is of the opinion that that employer or worker, by that employer's or worker's fault or negligence, contributed to the damage or loss of the plaintiff, it shall hold the defendant liable only for that portion of the damage or loss oc- casioned by the defendant's own fault or negligence." Vehicle owner has vicarious liability under traffic laws The court noted that the Alberta Traffic Safety Act stipulates that vehicle owners are vicariously liable for any damage caused by someone driving their vehicle and McIver argued that this made a vehicle's owner vicari- ously liable for the driver's fault or negligence under the Work- ers' Compensation Act. The court also pointed out that the provincial legislature could have expressly excluded employer/employee relation- ships from the "its own fault or negligence" clause in the Work- ers' Compensation Act. How- ever, the legislature chose not to do so and "appears to have con- templated that if the 'employer's or worker's fault or negligence, contributed to the damage or loss of the plaintiff ' then it was a proper case for the court to ap- portion liability" and hold Mc- Intyre only for the portion of the damages caused by his own fault or negligence, leaving some li- ability for CPA. "(Morgan) was in the employ of (CPA) at the time of the acci- dent and engaged in authorized employment conduct. (CPA) as the employer was in a position to have supervised (Morgan) and so able to exert sufficient control to be held vicariously liable for its employee driver's negligent conduct. There is a significant connection between (CPA) au- thorizing (Morgan) to test drive the vehicle and (Morgan's) negli- gent operation of the vehicle that resulted in the damages to (Mc- Iver). As such, I see no reason why (CPA) should not be held vi- cariously liable for the negligent acts of its employee driver," the court said. The court found the intention of the Workers' Compensation Act was to ensure someone like McIntyre — the vehicle's owner who is not protected under the act, unlike the other parties — to only be liable for the portion of damages that stem from his own fault or negligence and not those that are a result of the fault or negligence of an employee or employer that is protected under the act. As a result, the court deter- mined that while CPA couldn't be named as a party to the law- suit because of its protection un- der the act, McIntyre could share or redirect some of the liabil- ity for McIver's damages to the company because of its vicarious liability for Morgan's acts. Expectation of responsibility for repair shop The court found that McIntyre left his vehicle in the care and custody of CPA for repairs and "had no control or say over who drove the vehicle and had no personal fault for the accident." He was only liable because Traf- fic Safety Act said owners of vehicles were vicariously liable, said the court. It was CPA who was responsible for hiring and supervising its mechanics and was in the best position to super- vise and control the situation in order to prevent the loss. In addition, it was McIntyre's reasonable expectation that if any employee of CPA drove his vehicle and caused injury or damages, CPA's insurance would cover it and the company would be responsible, said the court. The court determined that 100 per cent of the vicarious li- ability for McIver's damages and losses should be apportioned to CPA. As a result, McIver could not recover any damages from McIntyre in his lawsuit. For more information see: • McIver v. McIntyre, 2016 Car- swellAlta 2299 (Alta. Q.B.). Canadian HR Reporter, a Thomson Reuters business 2017 News | March 2017 | CSR Credit: Shutterstock/Dmitry Kalinovsky

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