Library:
Owner’s Vicarious Liability for Auto Accidents
Published in the January 2008 issue of Transportation Notes - View Article
Section 192 of the Ontario Highway Traffic Act makes the owner of a motor vehicle liable for loss resulting from negligent operation, unless the vehicle was in the possession of another person without the consent of the owner. This provision has been often litigated and the general impact of the provision is well understood, although peculiar fact situations continue to cause some interpretative problems. Once such case, Henwood v. Coburn, was decided by the Ontario Court of Appeal on December 14.
Henwood was a travelling salesman. His own truck broke down and the supplier whose goods he sold leased another truck from Ontario Car and Truck Rentals for Henwood’s use. The supplier also asked Henwood to take one John Coburn on his rounds, for training purposes. Coburn was neither insured nor licensed to drive and the supplier specified that Coburn was not to be allowed to drive the truck.
After a day on the road, Henwood and Coburn stopped in at a local tavern and had some drinks. Coburn allegedly became belligerent and demanded that Henwood drive him to a destination several hours distant. Henwood refused. Coburn assaulted Henwood, took the keys of the truck and started to drive off with it. Henwood managed to climb on board and occupied the passenger seat. According to Henwood’s evidence, Coburn was intoxicated. He knew that Henwood did not want him to be driving but refused to heed requests that he slow down and stop. About 20 minutes after the adventure began, Coburn crashed the truck into a field. Henwood was injured. Among others, he sued Ontario Car, the owner of the vehicle, relying on the statutory vicarious liability provisions of the Highway Traffic Act.
For the car owner, the question was whether the person in “possession” of the vehicle had its consent to possession. It was clear on the facts that Henwood had that consent and Coburn did not. The owner sought summary dismissal of the claim against it and in doing so attempted to revive an old argument which was rejected in Ontario some 80 years ago. According to this argument, the only “possession” which should count for the purpose of the vicarious liability analysis is the possession of the person actually operating the vehicle. If this argument had been accepted the car owner would have been free of responsibility. The motions judge refused to accept it and found that it was Henwood who was in “possession”. He relied upon the fact that Henwood had managed to get on board the vehicle and continued to assert his claim to take control, although his assertion was ineffective in the circumstances.
The Ontario Court of Appeal disagreed both with the legal argument advanced by the car owner and with the factual determination made by the motions judge.
As to the legal argument of the car owner, the Court noted that the narrow view that only a driver can be in “possession” has been rejected consistently for many years. It was not willing to reconsider that question which was definitively settled by the case of Thompson v. Bourchier, decided in 1933. On the other hand, the Court was of the view that the motions judge did not have sufficient facts to justify the conclusion that Henwood remained in control. An assertion of the right to possession is not the same thing as possession. Only a full trial would allow a court to say who was in possession of the automobile at the time of the accident.
Henwood v. Coburn
2007 ONCA 882