Court Asked To Find Implied Consent After Child Takes Truck When Parents Are Away

It’s not uncommon for children to get up to some no good when their parents are out of town for the night. It’s one thing to hold a party, but it’s another thing all together to drink, borrow your parents’ car, and get into an accident. In a recent case before the Ontario Superior Court of Justice, the court was asked to determine whether there was implied consent given to an unlicensed child who drove his parents’ vehicle while they were out of town.

The history of the truck

The defendant driver’s license was suspended in 2005. At the time of his license being suspended he had a pickup truck, which sat unused from 2005 until 2009 when his mother became the registered owner of the truck (she did not pay for it, though). She had the truck insured and had some maintenance done to it in order to make it roadworthy. From 2005 until the night of the accident in 2012, the mother was the only person to drive the truck.

The night of the accident

On June 30, 2012, the defendant driver’s parents were out of town. He had been drinking and decided to take the truck, picking its keys up off the key rack in the house. After leaving the house he travelled on a parkway when he crossed the centre line and hit the plaintiff’s vehicle head-on. The police charged the defendant driver with a number of offences, and asked his mother whether she wanted to press charges. A police officer advised the mother that her son was facing a number of charges and recommended she not press charges. The mother followed the officer’s advice.

The plaintiff commenced an action for personal injuries sustained as a result of the accident and named the defendant driver, his mother, and an insurance company (pursuant to uninsured automobile coverage) as defendants. The insurance company sought summary judgment from the court declaring that the defendant driver was operating the truck with the implied consent of his mother. The insurance company claimed the plaintiff’s claim against it should be dismissed and that the mother should be held vicariously liable, pursuant to s. 192 of the Highway Traffic Act, which covers negligent acts. If this were found to be the case, the mother’s insurance should cover losses sustained by the plaintiff.

The issue of implied consent

The insurance company argued that the mother had not expressly told her son that he was not to drive the truck. However, the mother stated he had never asked, and had he done so, she would have told him no. They also argued that her leaving of the keys on the rack should be construed as consent.

The mother, meanwhile, testified that her son had not driven at all in the seven years since his license was suspended, and that she had no reason not to trust him while out of town. She claimed she had not had any conversations with her son about the use of the truck prior to the accident, and that he acted responsibly in his day-to-day life. Finally, the defendant driver confirmed that he had been in possession of the truck without his mother’s consent on the night of the accident.

The court’s analysis began by stating that the owner of a motor vehicle is statutorily liable for the losses arising out of another person’s negligent operation of their vehicle unless the driver has possession of the vehicle without the owner’s consent. The mother was clearly the owner of the vehicle, leaving the question to be whether her son used it with or without her consent. In this case there was clearly no express consent given.

The insurance company attempted to draw a distinction between possession and use of the vehicle, stating a 2015 Ontario Court of Appeal decision where the court ruled “Consent to possession of a vehicle is not synonymous with consent to operate it. Public policy considerations reinforce the importance of maintaining that distinction,adding “There is a long line of authority for the proposition that where the owner has consented to possession, the owner will be liable pursuant to s. 192(2) even if the vehicle is operated in a manner forbidden by the owner. As stated in Finlayson.”

Relying on this decision, the insurance company made the argument that the mother did nothing to prevent her son’s access to the vehicle, and that by leaving the keys readily accessible, she essentially invited her son to drive it.

The court did not accept the insurance company’s argument, writing, “In my view, the suggested interpretation is far too broad. (The insurance 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.” The court concluded that there must be an understanding between the owner and the driver that the driver is authorized by the owner to use the vehicle.

As a result of its findings the court dismissed the motion for summary judgment.

The first thing you should following an automobile accident is seek out medical help to ensure your health is taken care of. Following that, you should speak to an experienced personal injury lawyer to identify possible avenues of compensation. The exceptional personal injury lawyers at Derfel Injury Law work tirelessly to achieve the best possible outcomes for our clients. Please call us at 416.847.3580 or reach us online if you have been involved in a motor vehicle accident and would like legal assistance.