Recently, the Ontario Superior Court of Justice considered the vicarious liability of an owner of a vehicle for the negligence of the driver of the vehicle in the unfortunate case of Watts v. Boyce, Dunham and Co-Operators.
The lawsuit in Watts arose out of an ill-fated evening in Petawawa, Ontario when the vehicle driven by 17-year-old Emily Watts was struck by the vehicle owned by William Dunham, but driven by his girlfriend, Patricia Boyce. Tragically, Emily perished in the fiery crash, leaving her family to commence an action against William, Patricia and their own insurer, Co-Operators, who provided them with uninsured and underinsured coverage in the event they were injured as a result of the negligence of an uninsured or underinsured driver.
Not surprisingly, Patricia, who was charged with, among other things, impaired driving causing death, was denied a defence and noted in default. By the time trial rolled around, the only remaining issue was whether William or Co-operators was to pay the Plaintiffs’ damages. This required a determination of whether Patricia was in possession of William’s vehicle with his consent, such that he was vicariously liable for her negligence pursuant to s. 192(2) of the Highway Traffic Act, which provides that:
The owner of a motor vehicle…is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle…unless the motor vehicle…was without the owner’s consent in the possession of some person other than the owner…
On the date of the accident, Patricia borrowed William’s vehicle to attend an alcohol assessment as part of her effort to regain custody of her son. After the appointment, she stopped for lunch with William’s mother before heading home. Unfortunately for Emily, Patricia’s alcohol assessment, which she presumably attended to deal with her alcohol abuse, did not dissuade her from buying a bottle of vodka on her way home and drinking it throughout the course of the day.
At trial, William argued that he was not vicariously liable for Patricia’s negligence, as he did not consent to her operation of his vehicle while impaired. He also argued that his consent to Patricia’s operation of the vehicle was limited to traveling to and from the alcohol assessment and ended when she returned home that afternoon. In William’s view, he did not consent to Patricia using his vehicle many hours later while under the influence of alcohol, especially after she had texted him at 9:20 p.m. indicating she was going to bed.
Despite William’s belief that were conditions on Patricia’s operation of his vehicle, the Court found that there were not, noting that William did not actually express any conditions to Patricia. In rendering its decision, the Court was mindful of the fact that although William assumed Patricia knew she was not to use the vehicle after she returned home from her appointment, he did not specifically state this to her. The Court was also mindful of the fact that William took no precautions to terminate Patricia’s possession of the vehicle by taking the keys from her after she returned from her appointment despite his prior knowledge of her issues with alcohol and concerns with drinking and driving.
In addition, the Court took note of the fact that William granted Patricia some leeway in her use of his vehicle on the date of the accident, as he did not admonish her for taking the vehicle to have lunch with his mother after her appointment rather than going straight home (a fact which he was aware of before Patricia took the vehicle out again later that evening). The Court also took note of the fact that William did not ask police to charge Patricia for taking his vehicle without consent.
Based on the foregoing, the Court concluded that Patricia was in possession of William’s vehicle with his consent, without any conditions, for the entire date of loss. Therefore, relying on s. 192(2) of the HTA, the Court found William liable for the losses and damages sustained by the Plaintiffs as a result of Patricia’s negligence in causing the accident.
The Court went on to note that even if William had put conditions on Patricia’s operation of his vehicle and clearly expressed those conditions to her, operation of a vehicle is different than possession of a vehicle and it is possession of a vehicle which attracts the vicarious liability provisions of s. 192(2) of the HTA. As such, even if Patricia breached any such conditions by, for example, driving much later in the day after having returned home from her appointment and while under the influence of alcohol, she was nevertheless in possession of the vehicle with William’s consent, such that he would have been vicariously liable in any event.
The decision in Watt reminds us that it is consent to possession, not consent to operation, of a vehicle that attracts an owner’s vicarious liability under the HTA. It also reminds us that if loaning a vehicle to another for a limited purpose, it is important to expressly advise that individual of any conditions placed on his or her possession of it, as well as take steps to end that individual’s possession once he or she has used the vehicle for the limited purpose for which it was loaned. Most importantly, however, the decision reminds us of the tragedy that can ensue when we decide to drink and drive.
See Watts v. Boyce, Dunham and The Co-Operators General Insurance Company, 2013 ONSC 6848 (CanLII)