Personal Injury

Implied or explicit consent needed for vicarious liability

By Staff

Car owners must have given consent to another driver’s use of the vehicle before they can be held liable for that person’s negligence, Toronto personal injury lawyer Gary Will tells

Will, managing partner of Will Davidson LLP, says a recent decision involving an adult child who crashed his mother’s car reinforces the law on s. 192 of the Highway Traffic Act, which governs vicarious liability for negligent acts.

“The decision is consistent with previous cases, which state that owners are ordinarily responsible for damages unless their motor vehicle is being driven without consent,” he says. “In this case, the judge found on the facts that the owner had not given consent to the driver, either explicitly or implicitly before the accident.”

The son was the original owner of the truck that was involved in the crash but had stopped using it in 2005 when his licence was suspended. Ownership was then transferred to his mother — the only licensed driver in the home — in 2009.

One night in the summer of 2012, when the son was home alone after consuming alcohol, he took the keys from their resting place on hooks by the front door, and subsequently crossed a highway median and crashed head-on into the plaintiff’s vehicle.

According to the decision, it was the first time he had driven since his licence was suspended, and he had never asked his mother for permission to drive the truck because he knew she would have refused.

The plaintiff’s insurer, whose policy was activated by the driver’s lack of insurance, applied for a declaration that the mother, who had a valid insurance policy, should be held vicariously liable for the son’s negligence.

Both the son and his mother, who testified that her son had otherwise always acted responsibly when living in her home, agreed that he was driving without her permission. But the insurer argued that consent should be implied, because she had done nothing to expressly forbid his use of the vehicle or to limit his access to it.

Leaving the truck in the driveway with the keys on a hook was an open invitation to the son to drive it, the insurer claimed, arguing the mother should be held liable for the damages he caused behind the wheel.

However, the motion judge rejected that “broad” interpretation of consent.

“[The insurer’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. However, in my view, this is hardly what is contemplated by s. 192(2) of the Highway Traffic Act. Nor does [the insurer’s] suggested interpretation accord with the ordinary meaning of ‘consent,’” the judge wrote.

“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. In this case, on the evidence before me, there was no consent given to [her son] to drive the vehicle. The evidence filed on the motion indicates the exact opposite.”

Will says the result may have been different if the son previously attempted to use the vehicle.

“There are other cases where a child has a track record of using the vehicle against the parents' wishes, but with their knowledge,” he explains. “And in circumstances where they continued to leave the keys in an easily accessible place, the parents may be found to have implicitly consented to the child’s use.”

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