The average car weighs 3,680 pounds. A nine-millimeter bullet weighs as little as sixty-five grams. They can both do untold damage. Lending your car is no less perilous than lending your gun. In recognition of this fact, the Highway Traffic Act includes a measure that holds the owner of an automobile vicariously liable for the actions of anyone to whom that owner lends the automobile.
Understanding Vicarious Liability Under the Highway Traffic Act
To put it another way, if the person driving your car messes up, you wear it. You’re on the hook.
Legal Nuances: When Are You Liable?
- 192 (2) The owner of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway, unless the motor vehicle or street car was without the owner’s consent in the possession of some person other than the owner or the owner’s chauffeur.
Consent and Liability: Key Distinctions
First off, the rule that an owner is responsible for the negligence of another driver only applies if that person has the vehicle with consent. An owner is not responsible for the negligence of a car thief. The distinction as to who has the vehicle with consent and who does not can get fuzzy.
Implied Consent: Does your eighteen-year-old son have the car with consent if he took the keys without asking? Maybe he does. If it was your practice to allow him to take the car when needed, then by implication, he has the car with consent. If he’s never driven it before, but you would have given him permission had he asked, then once again, he probably does.
Third-Party Drivers and Extended Liability
Note that for an owner to be held responsible for another driver’s negligence, the law doesn’t require that the owner give that specific driver permission to operate (drive) the vehicle.
- Scenario: Let’s imagine a scenario in which the car is being driven by a friend of the owner’s son. The owner probably hasn’t given the friend permission to drive, but the owner’s son has given the friend permission to drive. Look at the wording of the section closely. It says an owner is responsible if a crash occurs while the car is in the possession of someone with consent. In this case, the owner’s son has possession with consent and he, in turn, has provided consent to his friend. Here, the owner is responsible for the negligence of the friend. This may be the case even if the owner has specifically asked the son (or person who has possession of the car with consent) not to let anyone else drive the car.
Limitations of Liability: Highway vs. Private Property
Another close look at the law reveals that this rule only applies to crashes that occur on the highway. In other words, it wouldn’t apply to crash on private property or in a parking lot. The owner is not automatically held liable for injuries or damage is these circumstances. That’s not to say that an owner wouldn’t be held responsible for such a crash. It may well be the case that lending a car to specific people is just a bad idea, which would be negligence.
Risks of Lending to Incompetent Drivers
There’s a real possibility that lending your car to someone that you know is a terrible driver can lead to claims that fall outside the coverage of your car insurance. Lending your car with callous disregard for the safety of other users of the road may lead to an award of aggravated or punitive damages. Your insurance company may not cover these losses.
Conclusion: Exercise Caution When Lending Your Vehicle
The reference in the opening paragraph comparing a car to a gun is obviously clickbait, and we shouldn’t treat gun safety lightly. By the same token, we shouldn’t be cavalier about lending our cars. Innocent people can and do get critically injured every year by cars not being driven by their owners. In virtually every case (with the above-noted exceptions) the owner of the car is vicariously responsible.
Edward Bergeron
Ted Bergeron is a Queen’s University graduate with degrees in Physical Education, Arts, Education and Law.
Ted’s legal career started in insurance defence litigation. He worked at a boutique law firm in Toronto, servicing only insurance companies. He switched to representing only injured clients and their families in 1995. He knows both sides of the system inside and out.
He has lectured extensively in the School of Rehabilitation Therapy, the School of Physical and Health Education and the Faculty of Law at Queen’s University. He has worked in a volunteer capacity with the Law Society of Upper Canada as an instructor in the Bar Admission Course teaching Civil Litigation.
