ARTICLE
24 March 2024

The Legal Terrain Of Liability In ATV Accidents

MO
McLeish Orlando LLP

Contributor

McLeish Orlando LLP is a Toronto personal injury law firm representing people who have been seriously injured and family members who have lost a loved one through the negligence of others. McLeish Orlando is a recognized leader within wrongful death and personal injury law. We represent people who have suffered brain injuries, spinal cord injuries and serious orthopaedic injuries. We strive for a fair settlement and the best possible results for our clients.
Megan Desrochers suffered a severe traumatic brain injury when she lost control while driving an all-terrain vehicle (ATV) in Prince Edward County and hit a tree on a highway.
Canada Transport

Introduction

Megan Desrochers suffered a severe traumatic brain injury when she lost control while driving an all-terrain vehicle (ATV) in Prince Edward County and hit a tree on a highway. Megan and her then boyfriend, Patrick, had been visiting his parents' farmhouse where his father, Grant, owned an ATV.

On the night of the collision, Patrick and Megan rode the ATV to the nearby intersection where the McGinnis family had left a pick-up truck carrying bundles of wood for sale on a self-serve basis. Upon reaching where the truck was parked, Patrick got off the ATV and went into the truck; giving Megan a "thumbs up" indicating she could drive the ATV back to the farmhouse along Yonge Road. Young Road has a 90-degree turn that one must navigate to get back to the farmhouse. Megan was unable to navigate this sharp turn, left the road on the ATV and collided with a tree. Megan suffered a severe traumatic brain injury that rendered her incapacitated.

A lawsuit was brought by Megan, through her litigation guardian, and her parents, pursuant to the Family Law Act, against Patrick, Grant, and Catherine, for permitting her to ride the ATV alone on a public road when they knew or should have known that it was unsafe for her to do so. A claim was also brought against Grant pursuant to s. 192(2) of the Highway Traffic Act which states that the owner of a motor vehicle is liable for the injuries sustained by reason of negligence in the operation of the motor vehicle with the consent of the owner.

The Decision of the Lower Court

The trial judge, Justice Hurley, held that liability had been established as against Patrick and assessed Megan's contributory negligence at 10% for having not worn a helmet. Although Justice Hurley found that Grant and Catherine owed Megan a duty of care, he found that they had met their standard of care. Further, no liability was found against Grant pursuant to s. 192(2) of the Highway Traffic Act as owner of the ATV.

The Appeal

Patrick appealed the finding of liability against him, and the Megan cross-appealed the finding of no liability against Grant and Catherine, arguing that they did breach the applicable standard of care, and further that Grant is liable for Megan's injuries pursuant to the HTA.

1. Patrick's Appeal

  • Patrick appealed the finding of liability, arguing that the trial judge erred in concluding the following:
    1. Patrick owed Megan a duty of care.
    2. Patrick breached the standard of care.
    3. Patrick's breach caused Megan's injuries.
  • For the reasons that follow, each of these grounds of appeal were dismissed.

1.1 Duty of Care

  • The Court of Appeal upheld the finding of Justice Hurley that an analogous duty of care can be found in these circumstances.
  • The trial judge came to this conclusion by accepting that, when taken together, the principles recognized in the following four cases established an analogous duty of care on these facts:
    • Crocker v Sundance Northwest Resorts Ltd.1: the Supreme Court of Canada held that the promoter and organizer of an inherently dangerous sport must take all reasonable steps to prevent a visibly incapacitated person from participating.
  • Hall v Herbert2: the Supreme Court of Canada held that those with the care and control of a motor vehicle should not permit another individual, that they know or should know is unfit to drive, to take over the control of the vehicle, particularly when the vehicle is high powered, the driving conditions are difficult, and the proposed driver is clearly impaired.
  • Gibson v Haggith3: the Alberta Court of King's Bench held that specifically with respect to ATVs that as they are dangerous machines, its owners owe a duty of care to those who may use the machine, particularly minors, to receive instruction in its use, to provide safety helmets, and to lay down reasonable and safe rules for the machine's use.
  • G. (Dependent Adult) v Strathcona (County of)4.: the Alberta Court of King's Bench held that a duty of care existed requiring the parent owners of a snowmobile to take reasonable steps to satisfy themselves that any minors intending to operate the snowmobile were capable of doing so and that they would do so.
  • The trial judge then concluded that the Plaintiffs had established that the owner of an ATV or a person who can control access to it owes a prima facie duty of care to a person, like Megan, who they know has had little or no experience or instruction in operating one. The important facts considered in finding this duty included:
    1. An ATV 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.
    2. Megan was a guest of the McGinnis family, with whom Patrick evidently wanted to operate the ATV.
    3. Megan had no experience operating an all-terrain vehicle yet was permitted to drive the McGinnis ATV which was acknowledged to be a dangerous machine.
    4. Megan was completely dependant on the instruction and training provided by Patrick and his mother, as well as their directions regarding the appropriate terrain on which to operate the machine given her limited skills.
  • The Court of Appeal upheld the conclusion of Justice Hurley as it was an appropriate application of Justice Cory's comments in the Hall5 decision:
    "one who has the care and control of a vehicle should not permit another person that he or she knows or should know is unfit to drive to take over the control of his or her vehicle."
  • Finally, the Court of Appeal upheld Justice Hurley's conclusion that the injuries Megan sustained were reasonably foreseeable in the circumstances.
  • The proper test for reasonable foreseeability is whether the plaintiff has offered facts to persuade the court that the risk of the type of damage that occurred was reasonably foreseeable to the class of plaintiff that was damaged.
  • The facts on which Justice Hurley relied to find that the risk of the type of damage that occurred was reasonably foreseeable to happen to Megan included:
    a.) The lack of instruction or training in what was determined to be the "most important skill" a rider must have to safely operate an ATV – navigating turns.
    b.) Patrick's knowledge that Megan had never ridden the ATV on that road, or any road, either with him or alone.
    c.) The only time Patrick drove with Megan as the passenger onto that road he entered the road significantly south of the curve where Megan was eventually injured.
    d.) Patrick's knowledge that Megan was heading towards a dangerous spot on the road for two reasons:
    i. due to the sharp curve requiring a level of skill to negotiate which Megan did not possess; and
    ii. due to the tree positioned a few metres off the roadway that would cause serious injuries if collided with.
    e.) The probability that Megan did not realize that she was at a sharp curve until moments before arriving to it – by then it would be too late for a person of her skill level and experience to make the turn or stop the vehicle before going off the roadway and striking a tree.

1.2 Standard of Care

  • The Court of Appeal upheld the finding that Patrick breached the standard of care for failing to exercise the care of an ordinary, reasonable and prudent person taking into account the likelihood of a known or foreseeable harm, when he could have taken simple steps to prevent that harm from occurring.
  • The facts on which Justice Hurley came to this conclusion were described by the Court of Appeal at paragraph 24:

[24] After noting that Patrick had many years of experience operating the ATV without any accidents or instances of careless operation, the trial judge explained at length at para. 96 why he concluded that Patrick had breached the standard of care:

  • Megan received minimal instruction from Patrick in the operation of the ATV, and she had only driven it in an open field under his direct supervision or when he was a passenger.
  • Megan had little experience in turning the ATV and none with sharp turns.
  • Megan had no familiarity with riding the ATV on Young Road, in particular driving an ATV alone on a roadway that did not have any artificial illumination when it would be semi-dark out.
  • Patrick gave Megan no warning or caution about driving on Young Road or how to negotiate the sharp turn.
  • Patrick took no steps to drive in front of her, as he could have, to ensure that she either slowed down or stopped before arriving at the curve. An experienced ATV rider like Patrick would know the effort and level of skill that was necessary to successfully negotiate such a sharp curve.
  • Patrick would have also known that the safe route for a person with Megan's experience would have been through the field, not on the road, but said nothing to her.
  • Patrick could have driven Megan back in the truck and retrieved the ATV later.
  • Also relevant was Patrick's relationship to Megan and his intimate knowledge of her mental health frailties: if he thought it was important to her safety and health to control her consumption of prescription medicine, he should have exhibited a similar level of concern with her driving a motorized vehicle alone, helmetless, on an unlit rural roadway, with an unmarked curve of more than 90 degrees, and with only limited experience in the operation of that vehicle.

1.3 Causation and Apportionment

  • Lastly, the Court of Appeal upheld the finding that Patrick's negligence is what caused Megan's injuries. Megan likely lost control due to her inability to turn the ATV at a sharp curve, and this inability was attributable to Patrick's negligence in only providing her with a minimal level of instruction.
  • The Court of Appeal also upheld the apportionment of Megan's contributory negligence at 10 percent for her failure to wear a helmet.

2. The Desrochers' Cross-Appeal

  • The Desrochers' appealed the finding that Catherine and Grant had met their standard of care, and the finding that Grant was not liable pursuant to the For the reasons that follow, the Court of Appeal upheld the finding that Catherine and Grant had met their standard of care, however, Grant was liable pursuant to the HTA.

2.1 The Standard of Care

  • The Court of Appeal agreed with Justice Hurley that neither Grant nor Catherine had breached the applicable standard of care for the following reasons:
  • There was no evidence that they knew or should have known that Patrick would not operate the ATV safely with Megan.
  • Grant understood that Megan had ridden the ATV while at the property and received instruction in its operation.
  • Grant was not at home at the time of the collision and had no knowledge, before the accident, about Megan riding the ATV that night or about plans to do so.
  • Catherine had driven the ATV with Megan as a passenger, observed Megan drive it without incident, and had given her some instruction in how to operate it. In her experience, Megan only drove the ATV around the property, not on the public road, and always at low speeds.
  • Catherine assumed that Megan would be driving the ATV back to the house but there was no evidence that she knew or should have known that Megan would drive on Young Road instead of across the fields.
  • Catherine told both Patrick and Megan to wear helmets. In the result, neither did. But the trial judge found that since Megan was an adult, not under the apparent influence of drugs or alcohol or otherwise incapacitated that evening and would be riding the ATV in the company of Catherine's adult son, Catherine did not have a positive duty to prevent Megan from getting on the ATV, to compel her to wear a helmet, or to specifically instruct her not to drive back on Young Road.

2.2 Highway Traffic Act

  • The Court of Appeal held that the phrase in section 192(2) of the HTA, "negligence in the operation of a motor vehicle" included negligence in turning over a vehicle to a person who is not fit or equipped to drive it in the circumstances.
  • In coming to this conclusion, the Court of Appeal looked to the reasoning of the New Brunswick Court of Appeal decision Dionne v. Desjardins6 where the Court held at paragraph 36:
    "the transfer by the driver of the care and control of a vehicle to another person is part of the 'operation' of a vehicle, in a broad sense, at least when this transfer is made for the purpose of moving the vehicle on the highway."
  • The Court of Appeal applied this reasoning to the facts and concluded that Grant was liable for Megan's loss under the HTA for two reasons.
  • First, the object of the section is to protect the public by imposing responsibility for the careful management of the vehicle on its owner. With this protection comes risk. If the driver to whom the vehicle is lent fails to observe the law, the owner bears responsibility for all loss or damage sustained as a result. Patrick's negligence in transferring the ATV to Megan constituted "negligence in the operation of the motor vehicle", for which Grant is statutorily liable.
  • Second, the Ontario legislation does not contain a definition of "operate" or "operation". Therefore, the proposed interpretation of the statutory phrase "negligence in the operation of a motor vehicle" including a negligent transfer of care and control by one driver to another did not undermine any statutory definition of "operation".

3. Takeaways

  • A duty of care is owed by the owner of an ATV and those who can control access to it to a person who they know has little or no experience or instruction in operating one.
  • The injuries sustained by a driver are reasonably foreseeable to the controller of access to the ATV when the following facts are present:
  • There is a lack of instruction or training given with respect to an important skill for the safe operation of an ATV.
  • There is knowledge that the driver has not previously ridden the ATV in the circumstances where they were injured.
  • There is knowledge that the driver will be taking a path not fit for beginners.
  • There is knowledge that the driver will likely be unable to take that path safely.
  • A controller of access to the ATV can be found to have breached their standard of care when the following facts are present:
  • Minimal instruction was provided in the operation of the ATV.
  • Minimal instruction was provided in how to turn the ATV, and no instruction was provided in how to navigate sharp turns.
  • No warning, caution, or instruction was provided for driving on that dangerous road.
  • No steps were taken to accompany the driver on the dangerous road.
  • No alternative routes were provided.
  • No alternatives to driving the ATV were provided to the driver.
  • No consideration was given to the particular driver's mental fitness to operate the ATV.
  • A controller of access to the ATV can be found to have met their standard of care when the following facts are present:
  • A fair understanding that the rider had ridden the ATV while at the property and had received instructions in its operation.
  • A lack of knowledge about the rider's plans to ride or actual riding of the ATV both generally or on the specific road in which they were injured.
  • Observation of the rider previously driving the ATV without incident and a fair understanding that the ATV would only be driven in that same location and in the same manner.
  • Some instruction was provided to the rider in how to operate it and instruction to wear a helmet.
  • Contributory negligence for a rider of an ATV who fails to wear a helmet may be set at 10%.
  • The phrase "negligence in the operation of a motor vehicle" as found at section 192(2) of the Highway Traffic Act, includes negligence in turning over a vehicle to a person who is not fit or equipped to drive it in the circumstances.

Footnotes

1. 1988 CanLII 45 (SCC), [1988] 1 S.C.R. 1186, at paras. 21-24.

2. 1993 CanLII 141 (SCC), [1993] 2 S.C.R. 159, at p. 223, per Cory J. (concurring).

3. 1994 CanLII 9105 (AB KB), 156 A.R. 229 (Q.B.), at para. 16.

4. 2004 ABQB 378, 356 A.R. 140, at para. 143.

5. Hall v Herbert, supra note 2 at para 223.

6. 1999 CanLII 32902 (NB CA), 214 N.B.R. (2d) 380 (C.A.).

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.

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