Implied Consent in a Car Accident Injury Claim

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When is it permissible to borrow another individual's vehicle when they have not expressly given you permission to do so? And what are the legal repercussions if you are involved in an accident while in possession of that individual's car?

These were the issues the Court had to consider in resolving a 2016 civil suit, in Watts v. Bowman.

Case example

On October 14, 2011, Amanda Bowman was driving her mother's car when she was involved in a motor vehicle accidentThe collision resulted in injuries to the driver of the other vehicle, including a fractured wrist and ongoing physical limitations.

On the day of the accident, the defendant went to her mother's residence to ask to borrow her car but found her asleep. At the time, the defendant's mother was undergoing chemotherapy treatments and as a result, felt ill and extremely fatigued.

After an unsuccessful attempt to wake her mother to ask permission for the car, the defendant proceeded to take her mother's keys and car. The daughter had infrequently borrowed the car in the past and she testified that she believed, at the time, that her mother would have allowed her request.

The plaintiff, the plaintiff's insurer and the defendant's mother, all agreed that Amanda Bowman was the negligent party and caused the accident. They also agreed on the plaintiff's compensation of $30,000, plus costs and disbursements of $4,964.33. Therefore, the issue of liability and damages were not in dispute.

Rather, what a judge had to decide was whether or not Amanda had the implied consent of her mother to take the latter's car on the day of the accident.

This is a significant point because, according to the Highway Traffic Act, the owner of a vehicle is liable for any loss or damage that results from the negligent handling of their vehicle unless, at the time of the accident, the vehicle was in someone else's possession without the owner's knowledge or consent. Therefore, making a legal ruling on the matter of implied consent would decide whether or not the vehicle owner, not Amanda Bowman, was liable for the incident.

In a legal context, implied consent refers to consent that is not expressly granted by an individual, neither in writing nor spoken word. Rather, implied consent is implicitly granted based on an individual's actions and the specific circumstances of the situation.

The test for determining implied consent was established in a Supreme Court of Canada decision in Palsky v. Humphrey, which required a judge to answer the following question when deciding the issue of implied consent. That is, "whether all circumstances were such as would show that the person who was driving had the implied consent of the owner and whether he was justified in deeming that he had such consent". In other words, do all of the circumstances surrounding the case, including the historical relationship between the borrower and owner of the car, suggest that the driver had implied consent?

While there is a component of subjectivity to the test, the trial or motion judge must consider all of the evidence and circumstances, to determine whether or not the owner of a vehicle has established that the driver of the vehicle at the time of an accident did not have implied consent. Applying the Palsky test, the judge, in this case, concluded that the defendant did not have her mother's implied consent to use her car on the day of the accident.

The judge noted that despite the defendant's claim that she was always given permission to use her mother's car when asked, over a 3 ½ year period, that permission was only granted twice. In fact, on other occasions when the defendant asked to borrow the car, her mother chose to drive her daughter instead.

The issue of liability in personal injury cases can be complicated and accidents involving vehicles driven by non-owners are only one of many circumstances that can add complexity to a case. At Rastin Gluckstein Lawyers, we are well experienced in representing clients in the successful resolution of injury claims against an insurance company or against negligent parties.

If you or someone you love was injured in an accident as a result of someone else's negligence, please do not hesitate to call or visit us today. We will be happy to provide a free initial consultation to discuss the unique circumstances of your case and can provide expert advice on your best legal options to achieve full compensation for any losses resulting from your injury.


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