When the Owner is Not the Driver

If a car owner lets someone else drive their car, and that person causes an accident, is the car owner responsible?

Giving permission to an impaired driver

Motor vehicle insurance policies require that people act in responsible ways when driving themselves. E.g.a driver who causes an accident because they’re too impaired to drive will forfeit their insurance coverage.1 ICBC may still pay the injured parties who sue, but will then claim those payments back from the insured driver who caused the accident.

But a person who owns a motor vehicle must also act responsibly when permitting someone else to drive that vehicle. If a legally insured owner lets another person drive, when they knew or ought to have known that the other person was impaired at the time, they forfeit their insurance coverage.

Note that the law tries to be fair to those who don’t know how impaired the alternative driver is. In Nielson v. ICBC2, the BC Court of Appeal held that the legally insured driver would only forfeit insurance coverage if it was reasonably foreseeable that the other person was too impaired to drive. This involved being able to observe signs of inebriation significant enough to render the person incapable of proper control of the vehicle.

¹ S. 18(1)(c) of the Insurance (Motor Vehicle) Act says “where…an insured violates a term or condition of a plan … all claims by or in respect of the applicant or the insured shall be rendered invalid…”

² Nielson v. ICBC [1997] B.C.J. No. 1363 (BCCA)

Giving permission when your children are in the vehicle

Extra care is owed when children are passengers in the vehicle. In a tragic case some years ago¹, a father had allowed his 16-year-old son to drive the family car with the father and four younger children in it. The son, inexperienced and speeding in icy winter conditions, tried to pass a tanker-truck on the highway, lost control, and crashed into a pole. The car ripped in two. It killed two of the younger children, seriously injured two, and rendered the father quadriplegic. The evidence at trial was that the son had suffered a significant brain injury several years before (which could have impaired his judgment), and that the night prior to the accident, the mother (who had briefly been a driving instructor) had asked the father not to let the son drive.

The court wrote:

“A parent, or other person responsible for small children, has, of course, a duty to take reasonable care not to expose them to unreasonable risk of foreseeable harm. The test to be applied in determining whether that duty has been discharged is an “objective’ one in the sense that the parent is expected to do, or not to do, that which, according to community standards of the time, the ordinary reasonable careful parent would do, or not do, in the same circumstances…. There may be several courses of conduct any of which a reasonably careful parent might follow in a given situation…”

The court also found the test was “subjective” to the extent that the reasonable parent must be assumed to have known information unique to that parent.

The BC Court of Appeal held that a reasonably careful father could have allowed himself to be a passenger so as to give his son an opportunity to learn to drive in winter conditions, but was negligent in letting the son drive with the younger children in the car.

¹ LaPlant (Guardian ad litem of) v. LaPlante [1995] B.C.J. No. 1303 (BCCA)

Giving permission when permittee then permits some else

In the case Babichuk v. Verlaan¹, the son, Vincent, had asked his father for permission to drive his father’s vehicle into the interior. The father had refused, citing among his reasons that it was not a good time of year to be driving in that area. Vincent then went to his brother, Paul, and asked Paul if he could drive Paul’s Jeep. Paul agreed. In fact, the Jeep was owned by the father, who had given it to Paul on the condition that Paul maintain and insure the Jeep. Shortly after taking the Jeep into the interior, Vincent was involved in an accident.

Was Vincent driving the jeep with the owner’s consent? The father argued that he had expressly refused to allow Vincent to drive his vehicle. However, the BC Court of Appeal held that when the father gave Paul the car, the only conditions to the gift related to maintenance and insurance, not to use. Paul was therefore free to consent to Vincent using the Jeep. Vincent had the implied consent of the owner, through the chain of permission running from the father to Paul to Vincent.

¹Babichuk v. Verlaan [2000] B.C.J. No. 75 (BCCA)

How long does the permission last?

In the case of Cox v. Fleming¹, a car owner, permission to drive the car while the owner was a passenger. Fleming had not told Olson that he could only drive when Fleming was in it. Later in the day, Fleming was drinking at a local pub and left his keys with Olson. Olson took the car and got it into a serious accident in which Olson and a friend, Cox, were killed. The B.C. Supreme Court held that the car was being driven with the implied consent of the owner because Olson had acquired possession of the car on consent earlier in the day, and had retained possession after that time

¹Cox v. Fleming [1993] B.C.J. No. 177 (BCSC)

With motor vehicle collisions accounting for almost half of all major injuries in Canada¹, it’s not surprising the law is strict not only about how a person drives their vehicle, but how they let it be driven. Erus caveo (Owner beware).

¹A Canadian Institute for Health Information, December 2003, puts the percentage at 47% for the years 2001-2002.