You do someone a favour and lend out your vehicle.
But then the unthinkable happens and your vehicle is in an accident. Worse still, the driver is to blame. Are you liable? According to Section 86 of the Motor Vehicle Act, the vehicle owner is indeed, usually liable. Before lending our vehicle, we should all be aware of the risks and potential ramifications.
The Act reads as follows:
86 (1) In the case of a motor vehicle that is in the possession of its owner, in an action to recover for loss or damage to persons or property arising out of the use or operation of the motor vehicle on a highway, a person driving or operating the motor vehicle who
(a) is living with, and as a member of the family of, the owner, or
(b) acquired possession of the motor vehicle with the consent, express or implied, of the owner,
is deemed to be the agent or servant of, and employed as such by, that owner and to be driving or operating the motor vehicle in the course of his or her employment with that owner.
In a recent article, I discussed the case of a drunken party-goer who caused a serious accident that killed a cab driver and injured his passenger. The drunken party-goer was driving a borrowed vehicle. The registered owner of that vehicle was sued for damages, along with the drunken party-goer and the party hosts.
However, not all is cut and dried. In some instances, the registered owner of a borrowed vehicle has not been held liable. Here are some interesting recent decisions:
(Green v Pelley).
Robert McIvor often gave his daughter, Jill, possession of his Ford pickup. Jill had had a very troubled past. She had been involved the drug sub-culture and had been before the courts for criminal activity. In 2005, she was back at home inNanaimo, supposedly turning her life around and working for her father. She was forbidden from contacting her friend, Pelley, a convicted criminal. However, in September 2005, she and Pelley were in her father’s truck with Pelley at the wheel. The pickup was full of stolen property and credit cards. It also had a stolen licence plate. Pelley was under the influence of cocaine, had a driving prohibition, and an outstanding Canada-wide warrant. It was an accident waiting to happen and unfortunately, it did. They were involved in a serious collision. Pelley was at fault and eventually convicted of dangerous driving causing bodily harm.
The injured victims sued Pelley, Jill and her father, Robert McIvor. The Court had to determine if Pelley had been driving with the express or implied consent of McIvor. If so, McIvor would be held vicariously liable for Pelley’s negligence. The Court’s decision? McIvor was found not to be liable. Why? Pelley was a third party. It could not be proven that McIvor had both an expectation and willingness that a third party would drive his vehicle (implied consent). There was no evidence that, if asked, McIvor would have consented to Pelley driving his pickup, nor would he have consented as a matter of course. Also, there was no evidence that he ever let his daughter lend the vehicle to others and no evidence that he was aware of Pelley ever having previously driven it. There was simply no evidence that McIvor knew that Pelley intended to drive his truck, or that it was even probable. The claim against Robert McIvor was dismissed.
But here’s a third party case where the outcome didn’t go in the registered owner’s favour.
McEvoy v. McEachnie
Robert v. Forster
In June, 2004, a Jeep belonging to Mr. Forster was involved in an accident inVernon. He’d had an agreement with his daughter that she was free to drive it, subject to two rules – she was not to drink and drive and no one other than she was to drive the Jeep.
Ms. Forster had been drinking at a bar with 3 friends into the early morning hours. They left together. Given that Ms. Forster was afraid to leave the Jeep overnight and was too drunk to drive, she handed the keys over to her sober friend, Ms. McEachnie. They headed south towards a lookout. McEachnie was driving, Forster was in the passenger seat and their two male friends were in the back. For some reason, Forster suddenly reached over and wrenched the steering wheel to the right. The Jeep lost control, hit a ditch and overturned.
Robert Forster, together with his daughter, were sued for damages by the injured parties. The trial judge first held that Mr. Forster either expressly consented or gave his daughter implied consent to use his Jeep. When his daughter grabbed the steering wheel, she was effectively driving. She was found to be negligent and the sole cause of the accident. Therefore, Mr. Forster was also found to be liable. He appealed.
On February 5th, 2010, the British Columbia Court of Appeal upheld the lower Court’s decision that Robert Forster was indeed liable for damages. The Appellant Judges agreed that, even if a person is sitting in the passenger’s seat, once they grab the steering wheel, that person is regarded to be in control, or driving. They also concluded that the vehicle’s owner is vicariously liable if, after giving consent, someone drives their vehicle and then negligently injures another person.
You need someone truly on your side. Why settle for less? Contact Einfeld Law for a free, initial consultation at (250) 712-0001, visit our website at www.einfeldlaw.com or find us on facebook.
D. Glenn Einfeld is a highly knowledgeable and experienced BC personal injury lawyer and BC motorcycle accident lawyer who has successfully litigated many ICBC claims and other insurance claims, including out of province claims, wrongful death, brain injury, spinal cord injury, whiplash, soft tissue injury, and all other serious injury claims.
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