Siskinds LLP personal injury lawyer, Victoria Edwards, was recently published in The Lawyer's Daily.

This article was originally published by The Lawyer's Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

Read the full article below.


Victoria Edwards – The Lawyer's Daily – Posted: November 17, 2022

A recent Ontario Superior Court of Justice case, Desrochers (Litigation guardian of) v. McGinnis [20221 0.J.

No. 3891, revisited the principles of proving negligence in a case where the plaintiff was injured while operating the defendants' all-terrain vehicle (ATV):

Facts

On July 29, 2014, Megan Desrochers, the plaintiff, suffered a severe brain injury when the ATV she was riding left the roadway and struck a tree. Patrick McGinnis, the plaintiff's then-boyfriend, was following her in a truck. He did not see the accident happen. Patrick McGinnis' father owned the ATV and his mother had taught Desrochers how to ride the ATV.

Desrochers and her parents started an action against the McGinnis family. The parties agreed to an assessment of damages and proceeded to trial on the issue of liability only.

Issues

  1. Did any of the defendants owe a duty of care to Desrochers?
  2. If so, did a breach of the duty of care cause or materially contribute to the accident?
  3. To what degree, if any, was there contributory negligence on the part of Desrochers?

Held

Grant McGinnis, the owner of the ATV, and Catherine McGinnis owed a duty of care to Desrochers. They did not breach the standard of care in the circumstances. Statutory liability did not flow to Grant because he consented for his son, Patrick, to operate the ATV. His consent did not flow to Desrochers when she took over operating the ATV that night.

Patrick was liable for Desrochers' injuries. He knew she was inexperienced at operating the ATV on roadways and did not exercise the care of an ordinary, reasonable and prudent person in the circumstances.

Desrochers was contributorily negligent for not wearing a helmet and for driving on the roadway when she could have returned to the McGinnis home through the field.

Reasons

The elements of a cause of action in negligence are well known: the defendant owed the plaintiff a duty of care, the defendant's behaviour breached the standard of care; the plaintiff sustained damage, and the damage was caused, in fact and law, by the defendant's breach.

Whether or not a duty of care exists is a question of law. When previous cases have not decided that such a duty of care exists, the plaintiff must establish a prima face duty of care. She must provide a sufficient factual basis to establish that the harm was a reasonably foreseeable consequence of the defendants' conduct in the context of a proximate relationship.

The plaintiffs submitted that the courts had already recognized a duty of care whenever a person allows another person to operate a motorized vehicle in circumstances where they knew or ought to have known that the person was unfit or otherwise unable to operate it safely.

The plaintiffs argued that the defendants knew that Desrochers had mental health issues including borderline personality disorder and ADHD, which were treated by prescription medication. The defendants knew that Desrochers regularly consumed marijuana, and that her parents had repeatedly asked them not to let Desrochers operate the ATV because they were concerned about her mixing marijuana and her medication, and because she did not have a driver's licence.

The defendants submitted that a duty of care did not arise in the circumstances of this case.

Justice Patrick Hurley, the trial judge, found that the plaintiffs established a prima facie duty of care for all the defendants. He wrote:

An ATV is a popular motorized vehicle and, to date, there is no legally mandated instruction or training nor license qualification. The owner of an ATV or a person who can control access to it owes a duty of care to a person, like Megan, who they know has had little or no experience or instruction in operating one. It is a powerful machine which can result in serious injuries to a driver or passenger, whether child or adult, if it is not operated properly. A reasonable person would know this; the probability of harm in these circumstances is clearly foreseeable. There is a similar legal obligation if they have particular knowledge that the person cannot safely operate the ATV due to their physical or mental condition. There are no policy considerations which would negative or limit the duty.

Establishing a duty of care is a "low threshold" legal requirement.

This is part one of a two-part series.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.