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Personal Injury

Leaving keys around isn’t implied consent: decision

Leaving vehicle keys in a visible spot in a home does not imply that all family members have permission to drive that automobile, Toronto personal injury lawyer David Derfel tells AdvocateDaily.com.

A recent Ontario Superior Court of Justice case illustrates that point, says Derfel, founder and principal of Derfel Injury Lawyers.

Court documents show that in 2012, a woman and her husband left their son — whose licence had been suspended seven years earlier — at home. He took the keys to a pickup truck in the driveway and drove on a freeway in the wrong direction, causing a head-on collision. He was arrested and charged with several offences, including impaired driving.

The driver of the other vehicle sued the son, the mother and her insurance company for undisclosed damages. The insurance company brought a motion for summary judgment, the court documents note, arguing that having the keys visible and available in the family home gave the son implied consent to drive and, as a result, there is no claim against the insurance company in the circumstances.

The judge dismissed that motion, stating the company’s position seems to “impose liability on an owner for an accident unless steps are taken to prevent unauthorized use of the vehicle. The approach essentially requires that an owner hide their keys in order to avoid liability.”

“I think this is a great decision,” says Derfel. “I don’t think people should have to put their car keys in a lock box when they go out. People should be comfortable in their homes, and not feel the need to hide things like their wallets and keys.”

This was the first time the son was behind the wheel since having his licence suspended in 2005, court documents state, and he “always acted responsibly while living at his parents’ house and had never done anything which might have caused [the mother] to mistrust him. He had never taken keys or other items without permission and [she] never imagined that there was any risk that he might decide to steal one of her vehicles.”

Derfel says, “The decision is pretty much on point with existing case law on the issue. To prove implied consent with automobiles, there needs to be something to indicate that the owner of the vehicle directly gave its operator permission to drive, or through their inaction, they permitted the person to do so.”

If the son drove without permission before or was shown to have done other things that indicated he was not responsible, that would have worked in the insurance company’s favour in proving implied consent, says Derfel.

In his ruling, the judge states, “Consent connotes permission, or acquiescence … there must be an understanding between both the owner and the driver (either express or implied) that the driver is authorized by the owner to use the vehicle.”

Derfel says this case offers valuable lessons for families.

“I think it is wise to have a discussion with teenage children, reminding them that they should not operate a vehicle unless the parents have given approval,” he says, adding there can be significant consequences for taking a vehicle without permission, especially if they are not legally licensed to drive.

“If someone shouldn’t be driving, it’s probably for a variety of reasons,” Derfel says. “Once they are behind the wheel, they could be putting other people’s safety and lives at risk.”

Parents should also know that, "If a child in their home, who is not legally permitted to drive or is prohibited by their insurance policy to do so, operates the parents' vehicle and gets into an accident, the parents may bear the consequences," he says.

“That vehicle in your driveway comes with great responsibility,” Derfel says. “As an owner of a vehicle, you are responsible for what happens with it. There can be significant financial, legal and emotional consequences to your family and others if someone is hurt or killed in an accident.”

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