Probably many of you, at one time or another, have hired a neighbourhood kid to do your chores around the house; some of you might even have been the ones who were hired. Today I’d like to explore this topic.
Scenario
Amy hired her neighbour’s son Bob age 13, to do some chores around the house for $8/hr. Bob helped Amy mow the lawn, clean the yard, sweep the driveway and carry groceries. Bob worked every Sunday during the school year and three days a week during the summer. Amy also set out rules regarding machine operation and safety precautions.
One day, while Bob was trying to refuel the lawnmower, he lit a match to the fuel can to see how much fuel was left. The match ignited the fuel can and set the house on fire. Bob escaped unharmed but caused $285,000 in damage.
Amy sued Bob for the damage. Should Amy succeed?
Analysis
By now, most of you have probably said that Amy should not succeed.
But why?
The Ontario Court of Appeal provides insight in Douglas v. Kinger (Litigation Guardian of) (2008), 90 O.R. (3d) 721. (The names have been changed for the purpose of this blog.)
The Court decided that Amy (employer) should not be allowed to recover damages from Bob (employee) because it would be unfair to hold Bob liable.
The Court held that the relationship between the employer and the employee showed that the employee negligence was foreseeable, but the employee’s liability was not.
Bob, 13 at the time, was hired as casual help. Amy knew that Bob was inexperienced, and that his mistakes could cause harm. She set out rules accordingly. Amy could not have expected Bob to indemnify (fully compensate) her for mistakes and accidents occurring during the employment.
Moving onto onto policy considerations, the Court found that employment relationships would be greatly challenged if employers could hold employees liable for the financial consequences of a mistake or accident at work.
Generally, there is a great power imbalance between employers and employees; employers are free to set the terms and conditions of the employment.
If an employer wants to off set the consequences of an employee’s mistakes, the employer can contract with the employees through an indemnity agreement, which will likely lead to higher wages, or the employer could purchase adequate insurance against the risks. The employer could also simply absorb the injures as costs of doing business.
Final Words
The Ontario Court of Appeal was reluctant to impose great financial burden on a minor defendant. To order otherwise would have been unjust – there’s no way that a 13-year-old would take a job, earning $8/hr, knowing that he or she may be responsible for damages of $285,000. Who would mow your lawn then?
