A 17 year old ICBC claimant was a passenger injured in single-car accident in which a 15-year-old unlicensed driver lost control of a vehicle owned by another.  They were at a campground near Dry Lake BC and were going to buy hotdogs when the driver lost control of the vehicle while fiddling with the CD player. The claimant’s injuries were assessed at $282,992.82.
The claimant then sought a declaration that she was entitled to recover against ICBC pursuant to section 20 of Insurance (Vehicle) Act, the uninsured motorist protection legislation which allows up to $200,000 to be paid if the claimant is injured by an uninsured motorist.
The trial judge concluded, in light of the claimant’s “incredibly young” age, that she was not barred from recovering on basis she “knew or ought to have known” that vehicle was being driven without owner’s consent. Judge ordered ICBC to pay sum to the claimant. ICBC appealed.
The appeal was allowed with the Court of Appeal stating:

[45]   The trial judge reasoned that while it would not be reasonable for an adult to assume that Luke “was able to give [the girls] Steven’s permission when he directed them to take the car”, it had been reasonable for an “incredibly young” 17-year-old girl to have believed he would. With respect, it seems to me that the trial judge here erred in applying a largely subjective standard in the face of statutory wording that has long connoted a well-understood objective standard. With respect, a reasonable person “ought to have known”, and indeed would have known, that neither Steven Hammond nor his mother was consenting to the Camaro being driven by an unlicensed 15-year-old. I agree with counsel for ICBC that as a matter of public policy, there is no rationale for holding the plaintiff to a lower standard in relation to her decision to become the passenger of Ms. Reeves.(Schoenhalz v. Insurance Corporation of British Columbia,2017 BCCA 289)

The relevant section of the Insurance (Vehicle) Act reads :

91 (1) This section applies to a person who

(a) suffered bodily injury, death or loss of or damage to property that is caused by the use or operation of a vehicle, and

(b) at the time of the accident as a result of which the bodily injury, death or loss of or damage to property was suffered, was an operator of, or a passenger in or on, a vehicle that the person knew or ought to have known was being operated without the consent of the owner, and, in the case of a leased motor vehicle, the lessee.

The phrase “ought to have known” requires an objective inquiry. The trial judge erred in law in applying a largely subjective standard despite statutory wording requiring application of objective standard. A reasonable person in claimant’s place ought to have known the driver was driving without the owner’s consent.

Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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