You may be liable for an Accident even when your Car is Borrowed without your explicit Consent

Posted by Stevenson Whelton MacDonald & Swan
April 01, 2019

In early March, three Oakville teenagers were injured in a single-car collision when their car struck the centre median of the QEW.  The car was driven by a 13-year-old boy who presumably didn’t have permission to drive his parents’ SUV.  The other two occupants of the vehicle were each 14 and 16 years-old, and the 14-year-old sustained life-threatening injuries

Whether or not a driver had the owner’s consent (in the above case, their parent’s consent) to drive the vehicle is a key issue in determining liability for crashes and injuries involving a borrowed car.  And, the owners of the car may be liable even if they didn’t explicitly give consent on the date the car was borrowed, but if there was implied consent based on the owner’s past behaviours.

In the Oakville accident, based on the age of the driver and the fact that he wasn’t licenced, the car owners likely won’t have any difficulty convincing police and their insurance company that the car was taken without permission.  For accidents involving a borrowed car, the onus is always on the vehicle owner to prove that the vehicle was taken without their consent, and this isn’t necessarily a clear-cut issue when multiple drivers live in a household.  The Ontario Court of Appeal has issued judgements ruling that vehicle owners are liable if their past actions imply that they have entrusted a person with possession of their car (such as by making car keys readily available to the person) even if the owner told the borrower they are not allowed to drive the vehicle (per Finlayson v. GMAC Leaseco Ltd., Henwood v. Coburn)

Nemeth v. Yasin (2015) is a personal injury lawsuit that involves a Mississauga man who was found liable for injuries to another driver, in connection with a car accident caused by his son.  The son had a poor driving record and was refused insurance by the father’s insurer, so the father informed his son that he was not allowed to drive his dad’s car under any circumstances, unless he obtained his own insurance.  Further, the vehicle insurance company was provided an Excluded Driver Form signed by the son and father that specified that the son was not insured to drive any of the family vehicles.  However, one day the boy’s mother called and asked for a ride home from the mall, so the son went to pick her up but did not tell her that he was forbidden to use the car (a fact which his mother did not know).

The son was involved in an accident at the mall, just prior to picking up his mother, and didn’t tell his parents since there was only minor damage to their vehicle. He reported the accident at a collision reporting centre one week later.  And, almost two years after the accident, the family received notification of a personal injury claim against them from a plaintiff who was injured in the accident.  The claim was brought against the son, his father and the plaintiff’s own insurance company, for uninsured motorist coverage.  At this point in time, the ownership of the car had been transferred to the son.

The father sought a judgement to have the claim dismissed against him, arguing that the car was taken without his permission and for this reason, he is not liable for the plaintiff’s damages.  The judge noted that the son was able to use his father’s car to drive to work and elsewhere, until his father had imposed the condition on driving the car, but the son still had access to the car keys, the car was still physically available for him to use, and he also had legal possession of the car (and eventually took ownership of the vehicle).  Based on these reasons and the decisions in Finlayson and Henwood, the motions judge concluded that the father had not met his onus to prove that his son took the car without his consent.

If you were hurt in a car accident and are considering making a claim for damages, call a knowledgeable Oakville car accident lawyer to seek clarification on any questions you may have and find out whether you have good legal grounds to claim compensation.

Disclaimer: Our blog is intended to inform our existing and prospective clients about topics pertinent to their lives. While our goal is to provide accurate and factual information, this in no way should be taken as legal advice or applied to specific cases. It is in your best interest to contact a licenced and practising lawyer for legal representation, as matters of the law are often complicated and cannot be fully assessed without knowing all of the details of a case.