Can I borrow the car tonight?
It is important to take good care and to be conscious of those who are allowed to drive your car! Absent theft, a driver is deemed to have your express or implied consent by the Motor Vehicle Act Regulations. (S.86 (1)).
If, for example, you lend the family car to your son or daughter, admonishing him or her ‘not to drive home if you have had a drink’, you may be deemed to have given permission for another person to drive the car. It is prudent to ensure that anyone who drives the vehicle is properly licensed and, to preclude a breach of insurance, will drive responsibly.
In some owner/driver situations at common law, implied consent will not be found. The facts in the following case were unusual, indicating that when implied consent is at issue, the burden of proving consent rests with the person who asserts consent.
In the 2010 British Columbia Court of Appeal decision of Snow (Committee of) v. Friesen [2010} B.C.J. No. 1879 (B.C.C.A.) the owner was found not to have implied his consent for the driver to operate his vehicle, and, as the insurance policy did not cover his injuries, an unfortunate outcome resulted for an innocent victim of an accident.
In this case, a truck driven by the defendant (Ms. Friesen) went out of control, striking and seriously injuring the Plaintiff Snow. Friesen did not have a valid driver’s license. She fell asleep while driving the truck. She had alcohol, cocaine and other drugs in her system at the time.
Mr. Saul was the owner of the truck. Mr. Saul was deaf, and he mistakenly understood that Neil (Friesen’s spouse) wanted to borrow the truck, and he gave his permission.
Was permission given to Friesen, although Mr. Saul did not understand she would actually be driving?
At trial, the Court found that Friesen had operated the truck with Saul’s express consent and therefore, Saul was vicariously liable. The onus, the Court stated, was on Saul, to assess the fitness of the driver who sought to have his vehicle. He did not do so but relied on the assumption that Neil would actually be driving.
On Appeal, the BCCA reversed this finding, stating …he was told that Neil wanted to borrow (the truck). That is what Mr. Saul had expressly consented to. It defies common sense to say that he in fact consented to Ms. Friesen driving it. Since Mr. Saul did not give his express consent to Ms. Friesen, he, as the owner, was not responsible for the injuries she caused to the Plaintiff.
Clearly, implied consent can be a difficult issue. If you intend to lend your car, it is important to give clear instructions as to who is allowed to drive the vehicle. While the case law has narrowed the principle of implied consent to protect owners from third party drivers in some circumstances, generally, by the Regulations, a driver is deemed to have your express or implied consent while operating the car. To avoid the possibility that you might be held vicariously liable for an accident and resultant injury to another person it is important to be cautious regarding who drives your car.