Did you know that you can be responsible for an accident involving your car even if it is being driven without your consent? It is commonplace to lend your car to family members, but if they ignore your instructions or rules, you may still be responsible for an accident.
Section 192(2) of the Highway Traffic Act makes the owner of a motor vehicle responsible for any damages caused as a result of the operation of that vehicle, unless the vehicle is in someone else’spossession without the owner’s consent.
What may not be obvious is that ‘possession’ of a car is not the same as driving a car. Possession simply means having the car in your custody. The law here goes back to 1933 when the Ontario Court of Appeal made a distinction between possession and operation of a vehicle.
The case involved a rental car and a written agreement that no one other than the renter would d rive the car. Instead, the renter was a passenger while his friend drove and subsequently crashed the car. The rental company tried to deny responsibility, but the court found that so long as the original renter remains in possession at the time of the accident, the owner is responsible under the Highway Traffic Act. Here, the original renter was present and in possession of the car – it didn’t matter that he wasn’t driving.
On the other hand are cases where someone has been given possession, but not consent. The most common scenario is where the person originally given consent to drive the car lets someone else drive while remaining a passenger. In this situation, the owner is almost always responsible for the negligence of the driver, even though the owner did not agree to let that person drive and, in many cases, did not even know the person was driving.
Finally, there are rare cases where the owner is present but the driver has no consent to possession. In one case, the owner was sleeping in the car when his friend decided to drive the car (without the owner’s knowledge or consent) and got in an accident. Other cases have seen owners jump into their cars while being stolen, with the courts ruling that thieves had no consent to possession. However, these are unusual cases and it is probably not a good idea to jump into a car that is in the process of being stolen.
Consent is important to accident victims, as insurance companies require it to respond to and pay out claims. However, there are other ways for accident victims to get compensation in these cases and our lawyers can help. If you or your car has been in an accident, call us at 416-800-4378 or 416-533-7133.