Most of us have lent a car we own to a friend or a child or other family member to drive at least once in our lives. Whether that is to go to drive to school, the store, or pick up kids, or to run errands, or even for a few weeks to ‘get them through' a rough patch.
It can be the kind or the easy thing to do at the time but you should be aware of the pitfalls of lending your vehicle to people who are not listed as insured drivers.
In Ontario, the vehicle owner is usually held responsible for damages or injuries that are caused while someone else drives the car. The person driving will be the one charged with any offences such as speeding, running lights, or driving impaired, but any insurance claims for accidents or personal injuries will be held against the insured owner of the vehicle. This means that if someone driving your car injures people in a car accident it is your rates and you who will be held liable and may be subject to civil litigation as well.
The Highway Traffic Act is very clear on the point and the courts and insurers have upheld the legislation consistently.
Implied consent and vicarious consent refer to situations where the person borrowing your vehicle thought they had permission to do so. This happens sometimes when you’ve lent a car in the past to a friend or child and it appears to the borrower that the arrangement is open ended. If someone borrows your car without your permission and has an accident then you may be required to prove the car was taken without your permission on this occasion or that it was stolen to be relieved from liability.
Implied consent cases have gone to court in civil actions over the years and the courts have decided them on their individual merits. In 1964 the Supreme Court of Canada agreed that the test for ‘implied consent’ is answering whether “all the circumstances were such as would show that the person who was driving had the implied consent of the owner”.
Cases involving personal injuries and civil litigation can become incredibly complex. There have been cases where children have taken cars after being told not to and caused serious injuries resulting in parents being held liable for damages. Parents with children using cars must impose serious restrictions on the use of the vehicle and if owners forbid the lending or use of vehicles courts have indicated that they must take careful management of the situation. Forbidding a child to drive a vehicle but leaving the keys accessible may not be enough.
The onus is always on the owner of the vehicle to ensure there is no misunderstanding about who may borrow the car without express consent even within family members.
You must inform insurance companies of all drivers who live in the household who may drive the car, and certainly of those who will be driving. The insurance company will also require you to disclose whether those individuals are occasional or primary drivers. Giving false information may result in the insurance company cancelling your policy and refusing to pay any benefits or costs in the event of an accident. A common example of this is parents who own a car and list their child as occasional drivers but then send the car and child away to school where the child is the primary driver.
The moral here is to take care of who drives your vehicle, be sure to know what your policy covers (some exclude occasional drivers under a certain age unless they are listed as insured) and think carefully about the risks and liability you are opening yourself up to.
If you have been injured in car accident that involved a borrowed or stolen car please talk to the experienced personal injury lawyers at Deutschmann Law 1.866.414.4878. The first consultation is always free and will give you an idea of the steps involved in securing your future.