More on Implied Consent of Registered Vehicle Owners: "Reasonable Inferences"
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with an interesting issue – can a Court infer consent to operate when a commercial vehicle is involved in a ‘hit and run’ collision?
In last week’s case (Perret v. John Doe) the Plaintiff was injured in a 2005 collision. She was run off the road by a U-Haul truck which was driving the wrong way on the highway. The driver of the U-Haul did not remain at the scene of the accident. The Plaintiff sued U-Haul arguing they are vicariously liable for the careless driver’s deeds under s. 86 of the Motor Vehicle Act. She also sued ICBC under the unidentified motorist provisions of the Insurance (Vehicle) Act.
ICBC brought an application arguing U-Haul is at fault and that they are liable for the crash because anyone driving the vehicle likely had their consent to do so. U-Haul opposed arguing ICBC should pay for the Plaintiff’s damages as this was an unidentified motorist claim and consent could not be proven.
The Court was asked to determine “whether ICBC or…U-Haul Co. is the proper Defendant” as a special case under Rule 9-3. Ultimately the Court held that U-Haul was the proper defendant finding that it was reasonable to infer, on a balance of probabilities, that the driver had the company’s consent to drive. In reaching this conclusion the Court made the following findings:
[15] The following agreed facts about the accident of May 12, 2005, could support a finding of consent:
1) The truck which caused the plaintiff to lose control of her vehicle was owned by U-Haul;
2) U-Haul rents vehicles to customers in British Columbia;
3) U-Haul consents to drivers, other than the person with whom it contracted, to drive the vehicle if they are at least 18 years of age and have a driver’s licence;
4) Approximately 135 U-Haul vehicles were rented in British Columbia on May 12, 2005;
5) There were 114 vehicles owned by U-Haul Canada that were previously stolen and unrecovered on May 12, 2005, of which 15 had been stolen in British Columbia; and
6) The driver of the U-Haul that caused the accident was probably a man in his 50s.
[16] What I derive from the above agreed facts is that:
1) It is probable that the U-Haul vehicle was not stolen. That suggests it was driven, either by the person who initially rented it, or by someone who that person agreed could drive it, and who was at least 18 years of age. U-Haul accepts that if either is true there is consent, assuming the driver had a driver’s licence;
2) I take notice that a driver in British Columbia must have a driver’s licence and therefore I conclude it is probable this driver had one.
[17] There are other facts which may be inconsistent with consent. They are the following:
1) The driver was clearly lost;
2) The driver may have been uncertain of his ultimate destination;
3) The driver did not stop at the time of the accident.
[18] Those facts may be inconsistent with consent because:
1) It would be expected that a person who rents a U-Haul vehicle will have done so for a particular purpose and will have known his destination and the route he intended to follow;
2) A driver who leaves the scene of an accident may do so because he knew he was driving a stolen vehicle.
[19] However, there are numerous other possible reasons for failing to remain at an accident scene. One could be that the driver did not know he had caused an accident. There was no contact between the vehicles involved in the accident on May 12, 2005. Another could be that the driver knew he had caused an accident and did not wish to face the consequences. There may be a multitude of other reasons peculiar to this driver which caused him to leave the scene of the accident. In my view, the fact the driver left the scene of the accident does not assist in determining the issue of consent.
[20] When considering the circumstances of the accident of May 12, 2005, there is obviously no certainty when attempting to reach a conclusion that the U-Haul vehicle was driven by a person who had consent. However, the law does not require certainty. It does require that I draw a reasonable inference and do not rely on conjecture. The Court of Appeal in Lee v. Jacobson, [1994] B.C.J. No. 2459, has described Caswell v. Powell Duffryn Associated Colleries Ltd., [1940] A.C. 152 (H.L.) [Caswell], as the leading case making that distinction. In Caswell, at 169-70, Lord Wright observed:
My Lords, the precise manner in which the accident occurred cannot be ascertained as the unfortunate young man was alone when he was killed. The Court therefore is left to inference or circumstantial evidence. Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.
[21] I conclude I can safely draw an inference that it is more likely than not that the driver had consent. I therefore answer question 2 in the affirmative.
[22] ICBC is entitled to its costs against U-Haul, if requested.