01 Dec Teenager “Ought To Have Known” Car Was Being Driven Without Owner’s Consent

In the BC Court of Appeal case of Schoenhalz v. Insurance Corporation of British Columbia, 2017 BCCA 289, five teenagers, including the 17 year old Plaintiff, drove to a campground for an outing. The car belonged to S., one of the teens present.  He had bought it using funds provided largely by his mother and the car was registered in her name “for insurance purposes”.

The Plaintiff knew that the other girl present at the campsite was 15 years old and did not have a license. The Plaintiff also understood the car owner’s permission was needed for another to drive it.

After the group reached the campsite, the Plaintiff was asked to go get some hotdogs and was handed the keys to the car.  S. had gone to collect firewood and wasn’t present at the time. The Plaintiff got into the driver’s seat of the car and the 15 year old girl got into the passenger seat. However, since the Plaintiff did not know how to operate a standard transmission, the girls switched places and the other girl drove the car. Unfortunately, a few miles down the road the driver lost control of the car and the car rolled over into a bank.  The Plaintiff suffered serious injuries and third-degree burns.

The Plaintiff alleged that the accident had been caused by negligence on the part of 15 year old driver.  She also alleged that S. and his mother had been negligent in consenting to the driver’s operation of the car.  S. and his mother responded that the driver had been operating the vehicle without their express or implied consent.

At trial, the Judge found the 15 year old driver liable to the Plaintiff in negligence. The Judge also determined the owner of vehicle had not consented to the driver operating the vehicle. However, the Judge concluded, in light of Plaintiff’s “incredibly young” age, that she was not barred from recovering on the basis that she “knew or ought to have known” the vehicle was being driven without the owner’s consent.

Given that the driver was uninsured at the time of the accident, the uninsured motorist provisions of the Insurance (Vehicle) Act were engaged.  The Judge ordered ICBC to pay a sum to the Plaintiff.  ICBC appealed that decision.

The Court of Appeal held that the Trial Judge erred in law in applying a largely subjective standard, despite statutory wording requiring application of an objective standard.  In the Court of Appeal’s opinion, if the Plaintiff did not “know” that the car was being driven without the owner’s consent, she “ought to have known” that this was the case, even if one took into account her age and experience.

The appeal was allowed and the order granted by the Trial Judge was set aside.1