Law and liability for dealership mechanics

When I posted a comment to a thread on plain language in law documents, I came upon Mr Mark Adler's - MA is a retired solicitor - email address and website.

Maybe Mr Adler has something to add to all that's been said and argued about the law of agency and the subject of vicarious liability as affects the employer. Let's hope he surfaces to lend a hand.

I will return to Chris's response, and thanks for putting down your thoughts.

There is vicarious liability, however, the general position as regards the law will be written down, then the exceptions will be written down. After that judgements handed down will set precedents which can be overturned or reinforced in higher courts. MOT checkers may find they are an exception to vicarious liability?
The Canadian Government may have taken the view that the MOT check is of such importance that people licensed to carry on the work need to be personally liable. To some extent. Once they have signed off the car there is no other line of defence between the MOT checker and, potentially, a dead pedestrian. It's about responsibility (obviously) and whether the vigilance and care taken in checking every single car is applied with the same vigour each time. And not just about abusing the position by pocketing the cash. An MOT may not be big money, but some will see it as legally enforced extortion.
However, airline pilots are licensed and invariably take out loss of license insurance, mainly in the event they find themselves unable to pass a medical and lose their license and their employment. Is there nothing similar that covers MOT checkers and the risks they run? It may be that your friend's only remedy is through (expensive?) insurance cover.

Ray, your point is well taken. Thank you. It speaks to the fact that each case is a case sui generis, meaning that each case stands on its own merits. And it all boils down to the question of proof and evidence, and this requires a tremendous amount of sieving and plowing through the facts and circumstances surrounding the situation.

What is disheartening is that the small man I call the ham and egger has so little clout, that his voice cuts no ice no matter what he says and to whom he says it. It takes time and money to file an appeal after appeal. We pay post haste when the judge hollers, "Your fine is $500."

I'm still hung up on this common law theory as I am with legal precedents consistent with work done "in and within the course and scope of his employment." On this alone lies the lynch-pin to hold the case together.

So if an employee does his work that is not within his job descriptions (he goes on the roof when he is not authorized to do so), or if does it outside his working hours, then he has himself to blame for legal problems arising.

Put this this way: he's a cab driver and he's legally protected for what he is paid to do during his normal working hours. But when he drives the cab after hours in his own time for extra pocket money for cigarettes and beer and gets his unauthorized passengers injured, his company would certain disclaim any responsibility. This I can live with.

A parting shot - the mechanic I referred to is fully qualified, exercised due care, and in no way negligent. So why was he hanged?

On second thoughts, by your assessment, Ray, maybe he IS qualified to work on North American cars but NOT qualified to service VW or Audi so that his employer is to blame for not giving him the proper training and guidance. Was this made clear to anyone when the MOT certified him as "unconditionally qualified?" A moot point.
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As a business manager I have to say that you are almost correct in your statements.
If I employ person A to work in a shop, I have made a judgement on that persons suitability for the position. If person A then does something wrong resulting in a criminal or civil law suit, as their employer I have to show that full and proper training was carried out. Not only that, but I have to show evidence that this person understood the training given.
Its gets more complicated if there is a training requirement which person A was aware of but did not raise with his employers. Likewise if some of the training was given elsewhere. In this case the employers could be forgiven for having the understanding that the person was fully qualified when in fact they are not. Then BOTH parties should be liable. Another consideration is the severity of the shortcoming. A shop assistant selling solvents to a 12 year old in the UK is personally liable for a prison sentence or fine up to £5000 unless it can be shown that the company did not have due diligence in traing, in which case, the company is also liable.

Vicar Rios:

By the way, I did not address your point as I should have. First off, I don't the see the soldier-and-war crime commission analogy as apposite; no offense intended. I hope I had made it quite clear, ab initio, that the man involved was 'clean,' in a manner of speaking, but plain unlucky.

To wit, apart from his contractual obligations and notwithstanding his limited insurance coverage as issuing from his employer's blanket policy to protect everyone working in the company, the man was held liable in crime and in tort. This fact called for the fine, at worse imprisonment, and the compensation to the injured party, right?

The nature of his guilt or culpability, I suspect, in retrospect, springs from his failing to exercise proper duty and standard of care - not from negligence. He simply was not familiar with the requisite legal procedures under a highway traffic Act. No question of strict liability attaches to this case, not the way I see it.

Let's hear from other readers. As for the mechanic, his case has been summarily disposed of a few days ago. But the academic question still lingers, and I'd like some consumer advocate to rise to the occasion to help with his opinions on how to redress the 'wrong' so that he and those in his shoes get a fair shake in the court of law. That's all.

First off, thanks for the feedback. The fact that a fine was imposed makes his conduct a crime, however trivial the act is and is defined. It's also carried a tortious liability. The civil part here would be the financial damages consistent with the repair costs the mechanic had to incur.

The other consideration is that the mechanic, more a technician by my standard, is qualified and certified by our Ontario MOT to conduct his duties and responsibilities on a day-to-day basis without hindrance. The man is no slouch.

Fraud or negligence is not the issue. The issue is the questionable jurisprudential basis of the act of discrimination whereby the law of principal and agency does not seem to protect the man while others are protected. The standard test ostensibly has always been whether such a person conducts his work in the course and scope of his employment, or in his personal capacity.

Take Lord Conrad Black: his felony case and court costs were covered by his company Hollinger International almost to the hilt. Apart of his employment contract, presumably, his insurance's doctrine of subrogation I'm sure plays into the court proceedings - and here, fraud was presumed to have been proved. I'm not legal expert or an analyst, but his being in Coleman slammed on a six-year term in Florida is proof of his culpability, rights?

Right on, Dandy. The ham and egger gets the shaft all the time; the privileged - if they can get away - walk away. We should slag and burn those CEOs who walk into the lush greenery of the fairways with millions and billions while the man-in-the-street loses his shirt and pension. Social justice for you!

The question is this Criminal Negligence or just plain simple Civil Negligence, and who is suing who, a private individual or the State. The private individual would presumably want compensation. No point suing the worker as he or she is unlikely to be able to pay up or even cover the court costs. Unless that worker happens to be a millionaire in disguise, working to pay off their tax avoidance fines.

Criminal negligence means prison, and any or everyone can go there, directors/employers or workers.

Actually, that argument can't (or should I say shouldn't) stand up because if the person is employed to do a job (as they are in this case) and the employer is inclined to neglect the training requirements of the employee then surely they should be held accountable? What's the mechanic to do, fork out on training courses to cover his (or her) own ass? The way I see it, they were employed to do a job and at that point they were presumably suitably qualified (the employer would have been the judge of that I hope) and some time down the line things change, the industry moves on. It should be the employers responsibility to make sure employees meet current standards.

I'm not a legal expert, this is just my opinion but at the end of the day that's the sensible approach I think. There again, those in power and those that have the money tend to care less about those who can be exploited!

Here we have the plea of the private soldier who has committed a war crime saying " I was only obeying orders." NO you cannot escape your guilt. If you have been negligent you are guilty, but your firm is also liable. Air traffic controllers are perosnally liable if planes crash on their shift, and they have been negligent.