Blog

If parents permit an adult child to use their all-terrain vehicle (ATV), and the son or daughter then negligently turns over control of that ATV to an inexperienced driver who gets seriously injured in a crash, the parents can be found partly liable to pay for the injuries, Ontario’s top court has found.

The Ontario Appeal Court found Ontario’s Highway Traffic Act (HTA), unlike similar acts in other jurisdictions, does not define what it means to ‘operate’ a vehicle on a public highway. Thus, it’s an open question whether a ‘negligent transfer of care and control’ of an ATV to another person counts as the ‘negligent operation’ of a vehicle under the HTA.

The court found it does.

“Interpreting the statutory phrase ‘negligence in the operation of a motor vehicle’ to include the negligent transfer by a driver of the care and control of a vehicle to another person for the purpose of moving the vehicle on a highway does not undermine any statutory definition of ‘operation’ [in the HTA], as none exists,” the appellate court ruled in Desrochers v. McGinnis.

The court thus overruled a lower court ruling on the matter. The trial judge found the father who owned the ATV in question was not liable to pay for injuries sustained by his son’s girlfriend in a June 2014 ATV crash.

On July 29, 2014, at dusk, Megan Desrochers suffered a severe brain injury when the powerful ATV she was driving left Young Road, an unpaved public dirt road with gravel shoulders in Prince Edward County, Ont., and hit a tree. At the time, Desrochers, 24, was the girlfriend of Patrick McGinnis, 28.

Patrick’s father, Grant McGinnis, owned the 2010 Polaris Sportsman 500 H.O. ATV. Grant and his wife, Catherine McGinnis, lived on a farm located on Young Road slightly north of the accident site.

Before the crash, Patrick McGinnis and Desrochers had lived together in Belleville since 2014. They often spent the weekend at the McGinnis farmhouse on Young Road, which runs north off County Road 11.

Grant kept the ATV at the farmhouse. Before her visits to the farmhouse, Megan had never operated an ATV. She did not have a driver’s licence. Patrick taught her how to operate the ATV, and Catherine McGinnis also provided Megan with some instruction and ‘hands-on’ learning. Megan had only driven in open areas on the private farmland.

Sometime on Friday, July 29, Patrick and Megan left the farmhouse and drove to Kingston to watch Patrick’s son play a soccer game, which lasted until dusk. At that time, Patrick’s uncle had left a pick-up truck at the foot of Young Road, where it joined County Road 11. Bundles of wood were left in the back of the truck for sale on a self-serve, honour-system payment basis.

After the game was over, Patrick wanted to check the cash can at the truck, since thefts had happened during the previous weeks. Shortly after their arrival at the farmhouse, Patrick and Megan rode the ATV south to the intersection of Young Road and County Road 11. Patrick drove. Neither Patrick nor Megan wore a helmet.

“According to Patrick, when they reached the pick-up truck, he got off the ATV and went to check the cash can in the truck,” the Ontario Appeal Court decision reads. “Patrick gave Megan a ‘thumbs up’ signal, indicating she could drive the ATV back to the farmhouse and he would follow.

“Megan thereupon began to drive the ATV back to the farmhouse, north along Young Road. Patrick followed in the truck, about 500 feet behind the ATV, driving at about 25 km/hr. The ATV remained equidistant ahead of him while it remained in his sight.”

But soon Young Road rose and took a “very sharp 90-degree turn to the left,” as the court described. “Patrick lost sight of the ATV when Megan drove up and over the rise,” the court found. “When Patrick crested the rise, he saw that the ATV had left the road at the turn and collided with a tree. He discovered that Megan was seriously injured. Emergency aid was called, and Megan was taken to a Kingston hospital.”

A lower court found Patrick was primarily responsible for her injuries since he let her drive the ATV despite her inexperience.

The trial judge found Patrick “failed to exercise the care of an ordinary, reasonable and prudent person taking into account the likelihood of a known or foreseeable harm, the potential for Megan to suffer serious injury, and when he could have taken simple steps to prevent that harm from occurring.”

Among other things, the trial judge found, these reasons included: Patrick had lengthy experience driving the ATV with no accidents; Megan had never driven the ATV on a public highway, around the severe turn on Young, and under poor lighting conditions; Patrick never gave Megan a warning or caution about driving on Young Road or how to negotiate the sharp turn; Patrick could have driven in front of her so that she was aware of the sharp turn; Patrick could have driven her back in the truck and got the ATV later.

The trial judge did not find the parents negligent for several reasons, primarily that they had no way of knowing Patrick would not be operating the ATV safely while out with Megan. But the appeal court found the trial judge erred for not finding Grant liable under the province’s Highway Safety Act, which states:

“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.”

In a 3-0 ruling, the appeal court found that “negligence in the operation of a vehicle” in the HTA can and does include the transfer of care and control of a vehicle to an inexperienced driver.

- Canadian Underwriter

RELATED READING:

Do I need insurance for my seasonal vehicle?