BACKGROUND
The respondent, Krista Pinksen, owned a vehicle. Ms. Pinksen’s husband allowed the appellant, Roger Rampersad, to use the vehicle. Mr. Rampersad was to return the vehicle later the same day but he failed to do so. Two days later Ms. Pinksen reported the vehicle stolen. A police officer contacted Mr. Rampersad and, with Ms. Pinksen’s agreement, told Mr. Rampersad that he had until 5 a.m. the next morning to return the vehicle to Ms. Pinksen. Mr. Rampersad did not return the vehicle by the deadline. After the 5 a.m. deadline elapsed, Mr. Rampersad was involved in a collision with the respondent, Yaser Mansour. Mr. Rampersad was charged with six offences including theft of the vehicle. Mr. Mansour claimed against Ms. Pinksen as owner of the vehicle.
Ms. Pinksen brought an application for summary dismissal of Mr. Mansour’s claim on the basis that Mr. Rampersad did not have her consent to use the vehicle at the time of the accident.
The Master found Ms. Pinksen had given Mr. Rampersad consent to drive the vehicle and dismissed the application. Ms. Pinksen appealed the Master’s decision. The chambers judge found that Mr. Rampersad did not have consent at the requisite time and summarily dismissed the claim against Ms. Pinksen. The chambers judge found that Ms. Pinksen’s consent expired at 5 a.m the morning after the police spoke with Mr. Rampersad and therefore he was driving without consent at the time of accident. The chambers judge noted that this was a situation where consent would terminate at a stipulated time rather than one of conditional consent.
APPELLATE DECISION
The Court of Appeal allowed the appeal and set aside the summary dismissal. The Court found that this was a situation of conditional consent which generally does not vitiate vicarious liability of the vehicle’s owner. Once an owner consents to the driver having possession of the vehicle, the owner accepts the risk of what that driver might do regardless of whether conditions to use the vehicle have been breached. The Court noted that there is one statutory exception to this rule: an owner may impose a condition that the driver not pass on possession of the vehicle to third parties.
The Court distinguished between circumstances where consent is withdrawn and where consent is conditional. The former affects the vicarious liability of the owner while the latter does not. The Court found that revoking consent while a vehicle is in the possession of another party by imposing a time restriction on possession is the same as creating conditional possession and does not negate the vicarious liability of the owner under the Traffic Safety Act, RSA 2000, c T-6, s 187(2).
COUNSEL COMMENTS
Counsel Comments provided by Colin Roberts, Counsel for the Appellant
“The Mansour appeal deals with the outdated concept of “consent” when a vehicle owner gives their keys to someone with permission to drive the vehicle. The word “consent” implies a subjective element to the analysis. When the owner finds out their vehicle has been in an accident, they will frequently say something like “I told them not to drink and drive” or “I told them to bring the car back by 9.” The problem with these purported restrictions is simply that they are unenforceable. Furthermore, the driving public is unaware of these private transactions between owner and borrower.
In Mansour, there was no dispute as to the facts. The owner lent her car to a rogue individual who she trusted would return the vehicle the same day. Instead, the rogue took the vehicle and went on a crime spree, ending in an accident several days later. The Mansour decision is another acknowledgment that the primary issue is public safety. In reality, the issue is vicarious liability of the owner, and not consent. Putting the risk of negligence on the owner of the vehicle, even though they did not “consent” for whatever reason, is sound public policy. When you give someone the keys to your vehicle, you take the risk of being vicariously liable for that person’s actions. The Mansour decision stops short of making that liability absolute, but the line is close.”