Vicarious Liability Of Vehicle Owner – What If The Vehicle Owner Provided Limitations On The Use Of The Vehicle?

Article by Sudevi Mukherjee-Gothi

The Court of Appeal in the August 10th, 2015 decision in Fernandes v. Araujo et al. addressed the vicarious liability of an owner of a vehicle for the negligence of a person who had possession of the vehicle with the owner’s consent. The Statutory Third Party Insurer for the owner of the ATV was denying third party coverage to the Defendant driver and was relying upon the 1952 decision in Newman and Newman v. Terdik, which held that:

The owner is not vicariously liable for damages sustained as a result of a highway accident when the person with possession of the vehicle violated the condition and drove the vehicle on a highway

However, the Court of Appeal

Affirmed a long line of authority going back to 1933 holding that as the vicarious liability of an owner rests on possession rather than operation of the vehicle, the owner will be vicariously liable if the owner consented to possession, even if the driver operated the vehicle in a way prohibited by the owner.

What is the basis for this finding?

1. The Highway Traffic Act

s. 192 (2) of the Highway Traffic Act provides:

192(2) The owner of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway, unless the motor vehicle or street car was without the owner’s consent in the possession of some person other than the owner or the owner’s chauffeur.

This provision therefore places the onus on the owner of the vehicle to be careful in who is being provided responsibility for the operation of the vehicle.

2. Was the decision in Newman wrongly decided?

The Court of Appeal held that:

The proposition upon which Newman rests, namely, that “possession can change from rightful possession to wrongful possession, or from possession with consent to possession without consent” where the person in possession violates a condition imposed by the owner, is inconsistent with the reasoning of this line of authority.

The Court of Appeal cites many cases contrary to the findings in Newman. Although it grapples with its authority to overturn Newman, the Court of Appeal ultimately finds that

Overruling Newman would enhance rather than undermine the interest of clarity, coherence and predictability in the law. Accordingly, it is my view that we should overrule the case and declare that it no longer represents the law of Ontario.

What does this mean?

1. If possession is given, the owner will be liable even if there is a breach of a condition attached to that possession, including a condition that the person in possession will not operate the vehicle.

2. Breach of conditions placed by the owner on a person’s possession of the vehicle, including conditions as to who may operate the vehicle, do not alter the fact of possession.1

Therefore, be careful with regard to who borrows your vehicle.

Footnote

1 Seegmiller v. Langer (2008), 301 DLR (4th) 454

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Uber stands ground in ongoing scrap with taxis, governments in Canada

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TORONTO – Uber drivers in Canada are facing mounting pressure from competing taxi drivers and local city governments alike – and it appears the fight is just getting started.

Last week, taxi drivers in Montreal pelted Uber cars with eggs, and dash cam videos of confrontations like this one are zipping around the Internet in increasing numbers.

Local governments appear to be siding with taxi workers.  “This service seemed to be operating outside the law and obviously the regulatory officials have made decision with respect to laying charges,” Toronto mayor John Tory told media on Thursday.

Toronto bylaw officers have  handed out 198 tickets to UberX drivers across the city in recent weeks.

The courts however have so far backed the ride-sharing service. An Ontario judgetold the city in early July there is no evidence that Uber is operating as a taxi broker, which requires city approval.

The taxi vs. Uber fight has gone global. In France, Paris authorities are actively investigating the UberPop branch of the U.S. company after taxi drivers rioted in June.

Taiwan officials have reportedly fined Uber over $1 million (U.S.) since last September, for penalties for operating without proper authority.

This week, Hong Kong police arrested five drivers for illegally carrying passengers and driving without insurance.

 

Now that sink hole is fixed, wrecked cars are revving up visits to National Corvette Museum

Now that sink hole is fixed, wrecked cars are revving up visits to National Corvette Museum

By Bruce Schreiner

THE ASSOCIATED PRESS

BOWLING GREEN, Ky.  – The car-swallowing hole has been fixed but not forgotten at the National Corvette Museum in Kentucky. Yellow tape now marks the boundaries of the cavity that became a sensation and put the museum on the map. And instead of a gaping sinkhole driving tourism, now it’s the vintage sports cars crunched by rocks and dirt.

Work ended recently to fill in the pit that consumed eight prized sports cars in early 2014. The repaired exhibit area has become a magnet for visitors, and the dirt-caked remains of the mangled cars are the stars.

Where the 60-foot-long, 45-foot-wide, 30-foot-deep sinkhole once drew gasps from visitors, now it’s the remains of the worst-damaged cars that get astonished looks.

“It’s just horrifying,” said Corvette owner Doug Kidd, of Canton, Ohio. “Nature’s a pretty big thing to deal with. They look like they went through a tornado.”

Seven of the eight cars are back on display in about the same spot where they plunged to fame. Five were too beaten up for repairs. One is fixed, another will return Sept. 3 after being repaired in Michigan and another will be restored by the museum. The eight cars carried a total value believed to exceed $1 million.

The museum’s Facebook followers now exceed 200,000, compared to about 50,000 before the sinkhole opened. On social media, photos showcasing the damaged cars outpace those of the shiny, sleek models on display, said museum spokeswoman Katie Frassinelli.

“People just really enjoy hearing the story and like seeing the damage,” she said. “I guess it’s the rubberneck effect. These cars definitely appeal to a wider audience.”

In the gift shop, jars of sinkhole dirt and rocks fetch $10 apiece. Nearly 2,400 jars had sold through July.

Wanda Cohen of Roswell, Georgia, had just posted a photo of a wrecked car on her Facebook page.

“It’s like looking at the worst wrecks you’ve ever seen,” she said.

For museum officials, the trick is to keep the site’s popularity from going in reverse now that visitors can’t gawk at the sinkhole. The museum cashed in on the giant chasm with record attendance and revenue in 2014.

Last year, the museum just off the interstate drew 251,258 visitors, easily topping the 150, 462 visitors in 2013. The museum’s prior record attendance was 200,900 in 1999. Through last month, attendance for 2015 was off just 2.5 per cent compared to the first seven months of 2014, the museum said.

“We just want to try to do our best to make sure the decrease is as little as possible,” museum Executive Director Wendell Strode said.

Maintaining that momentum will be challenging, said Jason Swanson, a University of Kentucky assistant professor in hospitality management and tourism. Even if the sinkhole had been left open, the publicity that helped spark the attendance bump would have eventually waned, he said.

“The museum is better off since more people now know of the museum because of the sinkhole’s publicity,” Swanson said. “However, 10 years down the road, 2014 and 2015 will likely be seen as an anomaly.”

The museum is doing its part to keep the sinkhole etched as a curiosity.

A temporary exhibit shows the now-famous security camera footage of the floor’s collapse and cars toppling like toys into the pit. That footage has been viewed about 8.5 million times on YouTube, the museum said. The hole opened up when the museum was closed, and no one was injured.

There’s also video of the damaged Corvettes being pulled from the hole. Also featured are condolence cards to the museum. One card-sender wrote of being “devastated to hear of your loss.”

A new sinkhole-themed exhibit is scheduled to open this fall.

Kidd said he wished at least part of the sinkhole had gone unplugged. It was an option discussed by museum leaders before they opted to fill it in.

“It’s human nature to come and see,” Kidd said.

Terry Jorgensen of Deland, Florida, said it would have been impractical to keep the hole open. Getting to see the crunched cars was more than enough, he said.

“I’m in awe of finally being here and seeing it,” he said.

The repairs began last fall and cost about $5 million, Frassinelli said. Insurance covered everything but the museum’s deductible. Donations picked up the deductible, she said.

Museum officials at first devastated by the chasm now have a much different attitude.

“We decided to embrace it,” Frassinelli said. “And what could have been a really big negative for the museum turned out to be a positive.”

canada-press

Hackers Cut A Corvette’s Brakes Wirelessly To Prove It Could Happen To Your Car, Too

By  | Consumerist 

General Motors gets to join Fiat Chrysler and Tesla in an unenviable lineup this week: Using cheap gadgets and text messages, researchers have proven they can hack that most traditional of cars, the Chevy Corvette. And worse still is that this line of attack will work on basically any car with a computer in it, which is to say… all of them.

As Wired explains, the flaw that would allow anyone to zap your car over a local wifi network first requires a physical component: you, or someone else, has to put a cheap, widely-available gadget in the vehicle first. That’s the good news. Here’s the bad: plenty of drivers are signing up to put those gadgets in their vehicles already. And the worse: the attack could also work on “practically any other modern vehicle.”

The gadget is a 2-inch-square dongle that insurance companies and trucking fleets plug into vehicles to monitor their location, speed, and efficiency.The particular vulnerable device is made by a French company and distributed worldwide. In the U.S., it’s used by corporations like Metromile, an insurance start-up that uses the trackers to charge customers rates on a miles-driven basis. (The company has a partnership with Uber, to offer discount insurance to those drivers.)

The security researchers demonstrated that those dongles can be vulnerable to a “carefully-crafted SMS message.” Those messages can be used to transmit commands to the car’s internal network, the CAN bus that controls major vehicle functions.

In their demonstration, the researchers turned the windshield wipers on and off and also, more worryingly, both activated and cut the brakes. They added that the brake tricks only work at low speeds due to safety features built into the car’s computer, but that they could also hijack critical features like locks, steering, and transmission.

As with other demonstrated security flaws, the problem is far larger than just one device. This particular dongle is already being patched, but there are others out there — and where vulnerabilities exist, someone will find and exploit them.

Insurance company Progressive offers an optional similar tracking to its customers. Commercial fleets regularly use some kind of tracker. And federal fleets of 20 vehicles or more are now also required to use metric and tracking systems to improve efficiencies when possible.

In other words, unsafe, exploitable devices are already out there, and will be everywhere soon. It’s just one more avenue where every consumer needs to be aware of the risk, and where every company needs to do everything it can to make sure its bases are covered.

Hackers Cut a Corvette’s Brakes Via a Common Car Gadget [Wired]

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