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Cell phones a potentially costly mix for business

Employee use of cell phones while driving may well represent the next frontier of costly liability for Canadian companies, according to Sudbury lawyer Claude Lacroix, of Lacroix Forest LLP.

Employee use of cell phones while driving may well represent the next frontier of costly liability for Canadian companies, according to Sudbury lawyer Claude Lacroix, of Lacroix Forest LLP.

Speaking at the Industrial Accident Prevention Association (IAPA)’s annual Safety Solutions conference, Lacroix outlined the many dangers Canadian employers may soon face from the courts.

With an ever-increasing pressure to do multiple things at once, employees often see their personal vehicle as a second office. This often means participating in meetings, making sales calls or sending e-mail through one’s Blackberry or cellphone while driving.

However, any collision an employee causes through this kind of work-related distraction could in fact find the company itself on the financial hook.

“If someone’s driving a Fisher-Wavy truck and runs you over tomorrow, we sue the driver but we also sue Fisher-Wavy,” says Lacroix.

“The base concept applies here.”

While no Canadian cases have yet arisen, many examples exist in the United States. As American principles of vicarious liability are similar to those seen in Canada, employers in the North have plenty of reasons to think twice about instituting a cellphone policy, he says.

Dyke Industries, a lumber wholesaler from Arkansas, lost a US$21-million lawsuit wherein one of its employees hit a 78-year-old woman while making a business call on their cellphone.

Similarly, the New York-based investment firm Smith Barney has also had to pay out US $500,000 after one of their brokers fatally struck a father of three while making a sales call.

Lacroix points to studies conducted by researchers at the University of Utah which concluded that talking on a cellphone affects the driver the same way as having a blood-alcohol level in excess of 0.08 per cent, the limit for impaired driving.

Because talking on the phone and driving require identical parts of the brain, doing both at once decreases one’s reaction time by a quarter, also quadrupling the risk of an accident.

As a result, using hands-free phones in the vehicle is not the answer, as it’s the act of being engaged in conversation, rather than holding the phone, that creates the hazard.

This kind of research has propelled many Canadian provinces to enact legislative bans on the use of handheld cell phones while driving, such as Nova Scotia, Quebec and Newfoundland. Ontario is considering similar legislation, though the proposed law holds no distinctions between handheld and hands-free cell phones.

Nevertheless, the presence of such laws is often not enough to deter one’s staff from doing the wrong thing, Lacroix says. Studies have shown that although cellphone use on the road does drop after relevant laws are put in place, the change is only temporary, with old habits returning within months.

“The reality is that we’ve been conditioned to think we can multi-task that way,” he says. “The fact however is that it’s just not safe.”

The solution then is for employers to take the initiative by instituting a clear, concise policy and educating one’s staff.

Some local Sudbury firms such as the CBC already have a policy for zero cellphone use while driving, Lacroix says, which is reinforced through highly visible stickers attached within the vehicles.

While it can be difficult to convince staff that old habits such as driving and talking on the phone are in fact dangerous and unacceptable, companies should take appropriate measures to ensure the message has been understood.

By ensuring that sufficiently strong measures have been taken to implement company-wide policy and educate staff, employers have a reasonable expectation of legal safety if employees disregard the rules.

Lacroix argues that employers should not rely upon the official stances from the major Canadian cellphone carriers such as Bell, Telus, and Rogers Wireless, as a deciding factor for whether or not to institute a corporate policy. After contacting each of them, not one issued a statement saying it is unsafe to drive while speaking on the phone.