Passengers not found contributorily liable in Personal Injury Claim

A 16-year-old boy took his mother’s vehicle without her consent, and went for a joyride with three friends.  The underage driver was driving in breach of his G1 as he did not have a properly licensed passenger in the vehicle. He lost control on a straight section of the road, causing the car to roll and land in a ditch.  No other vehicles were involved in the accident. It was believed that speed and driver inexperience were contributing factors in the collision.  The young driver was subsequently charged with careless driving under the Highway Traffic Act, but plead guilty to (and was convicted of) an ‘unsafe move’ under the Act.

Of the three passengers, two (both minors) were seriously injured and consequently initiated a civil action against the driver and his mother, the owner of the car.  Because the car was taken without the owner’s consent, the vehicle insurer refused to provide either coverage or defence in relation to the lawsuit.  As a result, the plaintiffs’ each filed an action against their own insurers, Royal & Sun Alliance Insurance Co. of Canada (RSA) and Dominion General Insurance Co.

One of the plaintiffs settled their claim with Dominion for $465,000 in February 2015.  This settlement was reached during the course of a full-day mediation with a highly-experienced mediator.  The other plaintiff settled with RSA for $65,000 in June 2014.  The two insurers then filed cross-claims against the defendant driver to recover the payments to the plaintiffs. In Caithesan v Amjad, Parveen and Dominion General Insurance Company (2016), both insurance companies also filed a motion for summary judgement pertaining to their cross-claims.

One of the passengers, who settled with Dominion, was more severely injured than the other passengers.  For him, the accident caused many serious injuries including: traumatic brain injury, headaches, behavioural changes, cognitive impairment, sleep disorders, depression, fractured left hip, facial lacerations, and neck and lower back pain. He was also diagnosed with post-traumatic stress disorder (PTSD) and adjustment disorder. The young man went back to high school and then on to university, however, he was designated as a special needs student and required additional years to complete his education. Clearly, the accident had a significant impact on the young man’s future.

The other injured passenger suffered injuries to his right wrist, neck and back, and was treated for a fractured forearm.  He also suffered neck pain and chronic back pain after the accident.  The judge in the case noted that all the passengers in the vehicle were lucky to have survived the crash.

In the summary judgement motion in Caithesan, the court was required to decide whether there is a genuine issue requiring a trial, based on evidence provided by the opposing parties.  The position taken by the defendant driver was that there was contributory negligence on the part of the passengers because they were all aware that he only had a G1 licence and further, they convinced him to take his mother’s car without her consent.  The only issue disputed in the summary judgment motion was whether the plaintiffs were indeed contributorily negligent.

The defendant gave testimony, at his examination for discovery, that he saw an animal on the road and tried to avoid it.  The police at the scene had in fact noted in their report that there was a dead animal at the likely starting point where the driver lost control.  However, the courts in Canada have held that a driver is not absolved of their duty of care to passengers and other users of the road when they swerve to avoid an animal.  Further, the evidence in this case indicated that the animal was dead before the accident occurred and the police report stated that the collision “could have been avoided if the driver was driving with due care and attention to the road”.

On the issue of contributory negligence, the motion judge asserted that the passenger’s conduct in influencing the defendant to take his mother’s car without permission does not qualify as contributory negligence.  The fact that they knew he was an inexperienced driver also does not constitute contributory negligence.  A passenger does not assume risk when they get into a vehicle, and a driver always has a legal duty to operate the vehicle with appropriate care, irrespective of a driver’s level of experience.

The motion judge concluded that all of the evidence supported the fact that the driver was negligent in the operation of the car, and therefore, there is no genuine issue requiring a trial.  Both insurers filed affidavits attesting to the reasonableness of the two settlements and the judge found that there is also no issue regarding the plaintiff’s damages.  Accordingly, the motions for summary judgement brought by RSA and Dominion were granted against the defendant driver, for the settlement amounts. When someone sustains injuries in a car accident due to the negligence of a driver, the courts do not accept ‘excuses’ for a failure to drive with due care.

If you or a loved one were injured and would like to file a claim against a negligent party for injury compensation, call Kotak Personal Injury Law to find out about your best legal course of action.  Our knowledgeable legal staff offer years of experience in representing accident victims in civil suits against insurance companies, and you can be assured that we will fight zealously to recover owed damages arising from your accident.


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Disclaimer: This article is intended to supply general information to the public. We make every effort to ensure the accuracy of this information. However, as laws change quickly, the reader should always ensure the accuracy and applicability of such information with respect to their particular case. The information contained in this article cannot replace a thorough and complete review of the reader’s situation by competent legal counsel who has had an opportunity to review all of the facts.