Case information

Insurance — Automobile insurance — Vicarious liability — Implied consent — What is the correct analytical approach to determine whether a driver is in possession of a motor vehicle with the owner’s consent — Whether the existence of implied consent is to be judged from the perspective of the owner or the driver or both — What circumstances may be considered when determining whether there is implied consent? — Motor Vehicle Act, R.S.B.C. 1996, c. 318, s. 86.

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While walking along a road, the respondent Tracy Ann Ward (“Ms. Ward”) was struck from behind by a vehicle driven by Anthony Thomas. She suffered catastrophic injuries, including a severe traumatic brain injury. Her litigation guardian is her mother Ellen Ward. The nature of Ms. Ward’s injuries and damages are largely not in dispute. The most significant issue was which of the defendants were liable.

The applicant, car dealership, Harris Victoria Chrysler Dodge Jeep Ram Ltd. (“Harris”), allowed the respondent, a customer, Aggatha Siah, to keep possession of a car for 10 days while Harris tried to find financing acceptable to Ms. Siah in order to purchase the car. On ninth day, while Ms. Siah was napping, her spouse allowed a third party, Mr. Thomas, to use the car to do an errand. Unbeknownst to Ms. Siah or her spouse, Mr. Thomas had consumed methamphetamine and another drug earlier in the afternoon. He apparently fell asleep while driving, crossed the median and catastrophically injured Ms. Ward and killed her sister.

The claims against Ms. Siah and Harris were based on the vicarious liability provisions of s. 86 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. The trial judge found Mr. Thomas had driven negligently and caused Ms. Ward’s injuries; that Ms. Siah had not purchased the car and accordingly, Harris was the owner in possession at the time of the accident; and that Harris had impliedly consented to Ms. Siah’s permitting friends or family to use the car. Harris appealed but the appeal was dismissed.