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Owner's Liabiltiy for Operation of a Family Vehicle

Posted by Michael Brooker, Q.C. on 2 April 2014

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Recent amendments to the Motor Vehicle Act and the Insurance Act may change the way our Supreme Court will have to consider whether the owner of a family vehicle is liable for damages caused by the operator of such a vehicle.

Section 248(4) of the Motor Vehicle Act dealt with the liability of the owner of family vehicle. It provided that where a person operating a motor vehicle was the husband, wife, father, mother, son or daughter of the owner of the motor vehicle, such person was deemed to be operating the motor vehicle as a family vehicle within the scope of a general authority from such owner unless and until the contrary was established. In the result, there was a rebuttable presumption that the operator of a family vehicle was operating the vehicle with the consent of the owner.

This section of the  Motor Vehicle Act was repealed and in its place, amendments were made to Section 148 of the Insurance Act. Section 148D(2) of the Insurance Act was amended to provide that where a person who, at the time that the loss or damage occurred,  was driving the motor vehicle and was living with and as a member of the family of the owner of the motor vehicle, that person is deemed, to be the agent or employee of the owner of the motor vehicle. The only instance in which the owner of such a vehicle will not be liable  for damages caused by the fault of the driver of the vehicle is if the owner proves that the vehicle was stolen.

There is significant distinction in the wording of Section 148D(2) of the Insurance Act as compared to the wording of the predecessor Section 248(4) of the Motor Vehicle Act. The Motor Vehicle Act provided a rebuttable presumption that the operator of the motor vehicle was deemed to be operating the vehicle as the servant or agent of the owner. The Insurance Act simply provides that the operator is deemed to be the agent or employee of the owner unless the owner can prove that the vehicle was stolen. There is no rebuttable presumption stated in the legislation. The issue our Supreme Court will have to consider is whether it should impute such a presumption.

In other words, will the owner of the vehicle be vicariously liable for the actions of the operator of the motor vehicle in any circumstances in which the operator of the vehicle was living with and a member of the family of the owner of the motor vehicle unless the owner can prove the vehicle was stolen or, will the court impute a rebuttable presumption in this regard? One of the issues the Court will have to come to grips with is whether the term "stolen" is akin to the term "without consent".