Tag: passenger grabbing steering wheel

Passengers Operating Vehicles are "Users" Covered By ICBC Insurance Scheme

Important reasons for judgement were released today by the BC Court of Appeal addressing the scope of ICBC insurance coverage when a collision is caused by a passenger intervening in the use and operation of a vehicle.
In today’s case (Felix v. ICBC) the Plaintiff was driving her vehicle when her boyfriend, who was riding as a passenger, “grabbed the steering wheel causing the vehicle to leave the highway and overturn.”  He was killed in the collision and the Plaintiff suffered numerous physical injuries.
The passenger was found at fault for the crash.   The Plaintiff, who was a verbatim reporter, suffered injuries which seriously compromised her abilities both vocationally and recreationally.  The matter proceeded to trial and damages of over $800,000 were assessed.  The Defendant motorist was insured with ICBC at the time.  ICBC refused to pay arguing they had no responsibility to cover the damages.
The trial judge sided with ICBC and found no coverage existed in these circumstances.  The BC Court of Appeal overturned this judgement finding the trial judge erred.  In finding ICBC liable to cover the damages the Court provided the following reasons:

[46]        The word “use” is to be considered in the context of the legislative scheme to provide “access to compensation for those who suffer losses” as a result of a motor vehicle accident, along with the legislative history, context and jurisprudence noted above. The word has been given a broad meaning in other judicial authorities. Considering all of these factors, as noted in Rizzo Shoes, I can only conclude that the word “use” in s. 63(b) includes use by a passenger in a motor vehicle when it is used as a motor vehicle.

ii)        In the context of the facts of this case, is there some nexus or causal relationship between Ms. Felix’s injuries and the use of her vehicle by Mr. Hearne?

[47]        The Court in Vytlingam addressed the issues of causation at para. 25, and said:

For coverage to exist, there must be an unbroken chain of causation linking the conduct of the motorist as a motorist to the injuries in respect of which the claim is made.

[48]        I would adopt the analysis and rephrase it in this context, as, “For coverage to exist, there must be an unbroken chain of causation linking the conduct of the user as a user of a motor vehicle to the injuries in respect of which the claim is made.”

[49]        In Amos, the Court said, at para. 26, “Generally speaking, where the use or operation of a motor vehicle in some manner contributes to or adds to the injury, the plaintiff is entitled to coverage.”  See also Westmount (City) v. Rossy, 2012 SCC 30 at para. 42.

[50]        While a passenger, or user, in a moving automobile, Mr. Hearne grabbed the steering wheel causing the accident that led to Ms. Felix’s injuries. It matters not for these purposes that he did not intend to take control of the car. He intentionally (and negligently) grabbed the wheel while he was “using” the vehicle. As a result, Ms. Felix suffered injury. There is, in my view, a clear unbroken chain of causation from his negligent act to her injuries. I would not disagree with the trial judge on this point.

Passenger 35% To Blame For Riding With Impaired Driver

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing contributory negligence for a passenger who rides with an impaired motorist involved in a collision.
In today’s case (Telford v. Hogan) the Plaintiff was a passenger in a vehicle operated by the Defendant.  Both were drinking throughout the day.  As the vehicle was travelling at excessive speed on a highway the driver lost control resulting in a serious single vehicle collision.  The Plaintiff apparently interfered somehow with the steering wheel moments before the loss of control and the Court found the driver 75% at fault with the passenger shouldering 25% of the blame for this interference.  In addition to this the Court apportioned the Plaintiff’s contributory negligence at 35% for riding with an impaired motorist.  In reaching this conclusion Madam Justice Fitzpatrick provided the following reasons:

[103]     Despite the efforts of Ms. Telford’s counsel to distinguish the above cases, all of them bear some resemblance to this case in that the passenger and the driver embarked on a drinking exercise or “hazardous enterprise” where both knew or should have known that the intoxication of the driver was inevitable. I would repeat that Ms. Telford was well aware that Ms. Hogan was drinking over the course of the day and she had particular knowledge of the quantity of what Ms. Hogan consumed as the majority of it came from her own drink container. Although she may not have been aware of exactly what Ms. Hogan consumed from Ms. Ettinger’s cup, she would also have been aware that Ms. Ettinger’s beverage was alcoholic and that Ms. Hogan was sharing that too.

[104]     It does not follow that since Ms. Hogan was not exhibiting overt signs of impairment, one need not consider Ms. Telford’s lack of judgment in both offering her drink to Ms. Hogan and then getting in the vehicle being driven by Ms. Hogan for the trip home. To the extent that later in the day, Ms. Telford drank alcohol to the point of being severely intoxicated herself confirms that she failed to take reasonable steps to ensure her ongoing ability to assess her safety over the course of the trip home.

[105]     The cases cited by ICBC support the suggested range of apportionment of 30-35% for such a passenger who voluntarily rides with a drunk driver. The higher end of this range is amply supported, particularly by the fact that Ms. Telford herself provided most of the alcohol consumed by Ms. Hogan that day.

[106]     I assess Ms. Telford’s contributory negligence to be 35%.

"Disturbing" Court Finding Limits ICBC Liability Following Passenger Grabbing Steering Wheel

Update September 23, 2015 – The below decision was overturned  in reasons released today by the BC Court of Appeal.
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Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, dealing with the responsibility of ICBC to pay damages following a collision caused by a passenger grabbing a steering wheel.
In today’s case (Felix v. ICBC) the Plaintiff was driving her vehicle when her boyfriend, who was riding as a passenger, “grabbed the steering wheel causing the vehicle to leave the highway and overturn.”  He was killed in the collision and the Plaintiff suffered numerous physical injuries.
The passenger was found at fault for the crash.   The Plaintiff, who was a verbatim reporter, suffered injuries which seriously compromised her abilities both vocationally and recreationally.  The matter proceeded to trial and damages of over $800,000 were assessed.  The Defendant motorist was insured with ICBC at the time.  ICBC refused to pay arguing they had no responsibility to cover the damages.   In a “disturbing” finding  Mr. Justice Saunders agreed and provided the following reasons letting ICBC off the hook:
[48] First – though it makes no difference to the outcome – I reject the plaintiff’s
contention that the estate of Mr. Hearne can obtain indemnity by virtue of
Mr. Hearne having been an insured under his own owner’s certificate. Section 63(a)
of the Revised Regulations does use the indefinite article, defining an insured as a
person named in an owner’s certificate. But it does not refer to any owner’s
certificate. Reading Part 6 of the Revised Regulation as a whole, the scheme of
insurance created thereunder clearly envisages the owner’s certificate referenced in
s. 63 to be the certificate on the at-fault vehicle, not any certificate on which an atfault
driver may be named. I agree with the defendant’s submission that the plaintiff’s
interpretation of s. 63(a) would lead to an absurdity: having one’s own owner’s
certificate would entitle one to the status of an insured in respect of any motor
vehicle, without that vehicle’s owner’s consent, and without having paid any extra
premium. I further agree that indemnity to an insured operating a motor vehicle not
described in an owner’s certificate issued to the insured is extended by operation of
s.65 of the Revised Regulation. To provide indemnity to such an insured through the
plaintiff’s interpretation would render s. 65 redundant.
[49] Second, I would not find – and it is not contended by the plaintiff – that
Mr. Hearne’s grabbing of the steering wheel constituted operation of the vehicle, with
the meaning of s. 64 of the Revised Regulation. I cannot find on the evidence that
Mr. Hearne probably intended to take control or intended to aim the vehicle in any
particular direction. Ms. Felix’s impression is that in the first two incidents of him
grabbing the wheel, Mr. Hearne was simply intending to scare her. Although the final
incident was different in that the movement of the vehicle was affected, there is not
sufficient evidence for me to infer that Mr. Hearne meant to alter its course. His
action interfered with the operation of the vehicle by Ms. Felix, but was not operation
in itself.
[58] While the Revised Regulation does, in effect, create a policy of liability
insurance, and while, as I have found, it is appropriate to apply to the Revised
Regulation the interpretive rule that coverage is to be construed broadly, the rules of
interpretation of statutory instruments must be paramount. Statutes are to be
construed liberally, but the construction and interpretation must be consistent with
the evident legislative intent. It appears to have been the intention of the governor in
council not to extend indemnity to vehicle passengers except those who may be
found to have been operating a vehicle with consent, or, in the limited case of injury
to a person who was not an occupant, to have been operating a part of the vehicle
within the meaning of s. 66.
[59] For that reason I am led to the conclusion that Mr. Hearne, as a passenger in
the plaintiff’s vehicle, was not engaged in use of the vehicle within the meaning of
s. 64. The defendant is under no obligation to indemnify the Hearne estate, and the
plaintiff’s claim must therefore fail.
[60] The consequence of this interpretation as regards designated drivers is one
which some may find disturbing. If that consequence was unintended, that is a
matter for consideration by the government.
 

Passenger Partly Liable for Collision After Grabbing Steering Wheel

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing fault for a single vehicle collision involving a passenger who grabbed the steering wheel.
In last week’s case (Sikora v. Brown) both the motorist and her passenger were driving home from a nightclub.  Both had been drinking but neither was “seriously intoxicated“.  As they drove through an intersection the steering wheel was shaking and the driver invited the passenger to feel this.  He held on to the steering wheel and shortly thereafter the collision occurred.  In finding both the driver and passenger equally to blame Mr. Justice Verhoeven provided the following reasons:
[37]         In these difficult circumstances, where neither version of events is reliable and where there is essentially no independent corroborative evidence one way or another, I find as follows.  Ms. Sikora had been drinking some alcohol at the nightclub but was not seriously intoxicated.  Mr. Brown had been drinking as well, somewhat more than she had, but was a large man and was also not seriously intoxicated.  They left the nightclub together intending to go to Ms. Sikora’s home. Along the way they discussed going to a restaurant.  Whether they actually agreed to go to the restaurant is immaterial.  Ms. Sikora was driving at about 60 km/h as they drove through the intersection.  She was aware that the intersection caused her vehicle to shake, and that the steering of her vehicle was notably “loose” and prone to shaking.  Either before entering the intersection or in its midst, in the context of telling Mr. Brown about the new car she had ordered that very day, she commented about the condition of the intersection, complained that it should be repaired, and complained about the poor condition of her vehicle’s steering in common with Fords generally.  She did not slow down before entering the intersection.  She invited Mr. Brown to observe the shaking of the steering wheel, and to feel the steering wheel of the car for himself.  He held it for a few seconds then let go.  The combined effects of Mr. Brown’s holding of wheel, the condition of the road and vehicle, and Ms. Sikora’s manner of driving the vehicle caused her to lose control of the vehicle some seconds after Mr. Brown let go of the wheel.  The precise mechanics of this are impossible to sort out. She did not brake at any time.  The vehicle likely swerved left before veering to the right, and then left the roadway to the right side, before eventually coming to rest in the ditch upon impact.
[38]         I find that both parties were negligent and that they both contributed to causing the accident in equal measure.  Ms. Sikora was negligent in not slowing down before entering the intersection or when proceeding through it, when she was very familiar with the defects in the road and the particularly significant consequences to her vehicle of the defects.  In somewhat precarious circumstances, she invited Mr. Brown to feel the steering wheel, when she ought to have known that his doing so could have unpredictable consequences, and could affect her ability to properly control the vehicle.  She did not slow down when he held the steering wheel for several seconds.  She lost control of the vehicle after he let go of the wheel.
[39]         Mr. Brown was also negligent, in holding the steering wheel for a few seconds, when he knew or ought to have known in all the circumstances, including the defective condition of the road and Ms. Sikora’s comments about the problems with her vehicle’s steering, that his actions could affect Ms. Sikora’s ability to control the vehicle.  I find that his actions materially contributed to her loss of control of the vehicle, and that the accident would not have occurred otherwise.  I do not accept his evidence that he merely touched the wheel with his open hand to feel it shaking.  He negligently grasped the wheel and held it in such a manner that it interfered with her ability to control the vehicle…
[45]         I find that Ms. Sikora and Mr. Brown are equally at fault for causing the accident.  As a result it is not strictly necessary to apply s. 1 of the Negligence Act, R.S.B.C. 1996, c. 333, which provides that where the fault of two or more persons causes damage or loss to one or more of them, liability must be apportioned equally if having regard to all the circumstances of the case it is not possible to establish different degrees of fault.

Passenger Found Liable for Grabbing Steering Wheel of Vehicle

(Please note the case discussed in this article went before the BC Court of Appeal in March, 2010, you can click here to read my post discussing the Court of Appeals Reasons)
Reasons for judgement were released today by the BC Supreme Court determining the issue of fault for a single vehicle collision which occurred in Vernon, BC in 2004.  The vehicle left the roadway, hit a ditch and over-turned.  3 of the 4 occupants sued for personal injuries.
The front seat passenger grabbed the steering wheel while the vehicle was in operation.  The vehicle then lost control.  The court made the following interesting findings of fact:

I find that (the front seat passenger) was the only intoxicated person in the Jeep that night.  Hers was the only memory subject to the confounding effect of excessive alcohol consumption.  I do not, therefore, accept her recollection over the recollections of (the driver) and (the other passenger), both of whom were sober.

[41] Finally, I find that of all the people in the Jeep, it was (the front seat passengers) judgment that was impaired by alcohol.  The disinhibiting effect of alcohol on judgment is well known – it requires no expert evidence to explain or establish.  I am satisfied that if she were sober, (the front seat passenger) would never have behaved as she did.  The only conclusion I can come to on the evidence adduced at trial is that (the front seat passengers) intoxication led her to believe that a hazard existed where there was none, or to think that it would be humorous to give the Jeep a shake by grabbing the steering wheel.  I therefore find that (the front seat passenger’s) judgment was impaired by alcohol and that, as a consequence of that impairment, she negligently grabbed the steering wheel and caused the Jeep to veer off the road.

[42] I find that (the driver) did nothing wrong and was not negligent in her operation of the vehicle that night.  Specifically, she was not impaired; she was not speeding; notwithstanding her novice driver’s licence, she had the proper degree of skill and experience to operate the Jeep; she was attentive and alert; she did not allow the Jeep to wander from its proper course on the highway; and she could not have anticipated that (the front seat passenger) would do something so foolish as to grab the steering wheel and jerk it to the right….

[43] In summary, (the front seat passenger) was negligent and her negligence caused the Jeep to swerve off the road and into the ditch.  (the driver) was not negligent and did not contribute to the cause of the accident.  (the driver) was sober and was competent to drive the Jeep.  No person in the Jeep that night was contributorily negligent for having taken a ride with her.

In addition to the unique facts of this case, it is worth reviewing because the court made some interesting findings with respect to ‘use and operation’ of a vehicle and the vicaroius liability of registered owners of vehicles.
In this case the vehicle was owned by the front seat passenger’s father.  He permitted his daughter to operate the vehicle but did not permit her friends to operate the vehicle.   Section 86 of the Motor Vehicle Act imposes liability on the owner’s of vehicles for the actions of the drivers of their vehicle in certain circumstances, particularly, the section holds that:

86 (1)        In the case of a motor vehicle that is in the possession of its owner, in an action to recover for loss or damage to persons or property arising out of the use or operation of the motor vehicle on a highway, a person driving or operating the motor vehicle who

(a)        is living with, and as a member of the family of, the owner, or

(b)        acquired possession of the motor vehicle with the consent, express or implied, of the owner,

is deemed to be the agent or servant of, and employed as such by, that owner and to be driving or operating the motor vehicle in the course of his or her employment with that owner.

In this case the owner of the vehicle argued that he should not be held responsible for the accident because he did not consent to his daughter’s friend to operate the vehicle.  In fact the court found that:
[24] The evidence is also clear that as a general proposition, (the owner) instructed his children that no one but them should drive the cars that he left in their possession.  His purpose for imposing that rule was to keep the children and his cars safe.  That was because he knew and trusted his children’s judgment, but he did not necessarily know or trust the judgment of their friends.  The question here is whether, notwithstanding his general rule, (the owner)gave his consent to (his daugher’s friend) operation of the Jeep on the night of the accident.
The court found that the father (owner) did consent in these circumstances finding that:

[32] Barreiro makes it clear that the policy that drove the result in Morrison extends to situations where the owner gives the keys to its agent and the agent passes the keys on to a third party. Barreiro stands for the proposition that so long as the transfer of car keys from owner to second party is done by an exercise of free will, and the second party gives the keys to a third party by free will, the owner will be deemed to have consented to the third party’s possession of the car.  That will be the result even though the owner and the second party had an understanding that the third party was not to ever get possession of those keys.

[33] In my view, except for the fact that (the owner) obtained no financial benefit from (the driver’s) possession of the Jeep, the present case is not distinguishable from Barreiro.  (the owner) freely gave the Jeep’s keys to (his daughter).  She freely gave the keys to (the driver).  (the owner) must, therefore, be taken to have expressly consented to (the driver’s) possession of the Jeep on the night in issue.

[34] For the same reason, (the owner) must be taken to have expressly consented to (his daughter’s) possession of the Jeep that night, and that is so notwithstanding the fact that she was intoxicated and that her being intoxicated broke the other of (the owner’s rules.

The moral of this story is be careful who you lend your vehicle to in British Columbia because you can be held responsible for their actions, even if they lend your vehicle to someone who you would not lend your vehicle to!
Lastly, the court found that the father (owner) of the vehicle was responsivle for his daughter’s actions when she grabbed the steering wheel because, while doing so, she was operating the vehicle.  Specifically the court found that:

[51] When (the front seat passenger) grabbed the steering wheel, she exerted an effort to control the Jeep’s trajectory.  As such, she was, for a brief period of time, “driving” the Jeep by moving the steering wheel, and she was, for an equally brief period of time, “operating” the Jeep by inputting some control over its steering function.

[52] For those reasons, I find that just before the Jeep went off the road, both (the driver) and (the front seat passenger) were driving it.  (the front seat passengers) efforts were unwelcome and unhelpful, not to say outright dangerous, while (the driver’s) efforts were blameless.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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