TORONTO — Whenever someone is injured on the highway and a truck is involved you can bet some lawyer, somewhere, is firing up the photocopier and getting ready to sue someone. Almost always, that someone is the truck driver and/or vehicle owner.

But what about the shipper? Should it bear any responsibility in cases involving an unsafe piece of equipment or unqualified driver?

Carriers who insist highway safety needs to be a systematic effort from the entire supply chain would say "yes."

"Where is the due diligence on the part of the shippers to make sure that these people are running equipment that is safe?" asks Claude Robert of Robert Transport.

Mark Seymour of Kriska Transport says that as long as their product gets to market, many shippers aren’t interested in what their transport providers are doing. "They’re in survival mode right now so the mandate from their corporate is to get it done as cost effectively as possible."  

Truckers often bear the lowest hanging settlement

Legally, however, shippers and logistics companies would do well not to turn a blind eye.

It’s more likely to happen in the U.S. where litigation might as well be the 28th constitutional amendment, but suing the shipper for a truck accident isn’t unheard of. It is uncommon, though.

One reason is that truckers often bear the lowest hanging settlement, says Toronto personal injury lawyer Jeffrey Raphael of Raphael Barristers.

"Trucking companies are usually well enough insured and easier to show negligence that we don’t need to look any further," he says. "In the U.S. where you see a little more [litigation] against the shipper, vehicles tend to be more under-insured than they are here. That’s where you see creative lawyering because there perhaps isn’t as much money from the person who’s directly at fault."

In Canada, the case would need to be more "facts-driven," says Raphael. Plaintiffs’ attorneys would have to show that a shipper who continuously uses bad carriers "knows or ought to know" the carrier is not following the rules.

"I don’t think it would be enough to say that a shipper is liable because they use a company with a bad record," says Raphael. "But if I can prove that they know or reasonably ought to know [the carrier] cuts corners because that’s how they do it so cheap, then I could see potential for flow-through [liability]."

What a company "ought to know" about the competency of its service providers is, of course, up to lawyers to prove and judges to decide.

That shouldn’t be a risk any shipper would want to take.

Still, many logistics companies fail to make a connection or bear any responsibility for safety on the highways — at least not until something significant occurs and the spotlight turns on them too.

"It’s an enigma," says Frank Gentile of Titan Cartage. "You expect to have to best service, but yet you hire the cheapest carrier. And when you’re wife and kids are out driving on the highway you don’t want them to be in jeopardy, right? You don’t often relate it, unfortunately."

— For more on truck crash prevention in the "new normal" world of trucking, see this week’s online feature The Machine Behind the Wheel.