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NEGLIGENCE - Motor vehicles - Liability of owner - Consent to possession

Tuesday, October 29, 2019 @ 8:13 AM  


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Action by Block for damages for personal injuries sustained in a motor vehicle accident. Block was a 46-year-old self-employed businesswoman. At the time of the collision, she was employed full-time, operating her own health and wellness business. Prior to the collision, Block was very active and regularly participated in activities such as tennis, badminton, biking and hiking. She was married with two children, ages 21 and 18. The accident occurred on November 26, 2013. Block was the owner and operator of a vehicle that was sideswiped on the driver’s side by a vehicle owned by the defendants, the Schmitts. The Schmitt vehicle did not stop, but the police eventually caught up to it. At all material times, the Schmitts’ son was the operator of the Schmitt vehicle. He did not have a valid BC driver’s license at the time of the collision and the defendants denied that they gave their consent for him to operate the Schmitt vehicle. The defendants denied liability for the accident. Block took the position that s. 86(1) of the Motor Vehicle Act (MVA) was disjunctive, such that vicarious liability was established on proof that the driver of the vehicle was a member of the family of the owner and living with the owner at the time of the collision. Block argued that, in such circumstances, consent of the owner was immaterial. The defendants argued that consent was not provided and that their son was only temporarily living with them. Among other damages, Block was seeking a general damage award of $90,000 and an award for loss of future earning capacity in the range of $250,000. The defendants, while denying liability, questioned the extent and nature of Block’s injuries and their impact on her employment, and her recreational and domestic activities. The defendants submitted that a reasonable award for non-pecuniary damages was in the range of $22,000 to $30,000. They argued that Block failed to mitigate her damages.

HELD: Action allowed in part. The Schmitts’ son failed to remain in his lane of travel, operated his vehicle in a careless manner, and failed to pay due care and attention. The collision was therefore caused by his negligence. Vicarious liability could be established under s. 86(1) of the MVA where the driver of the vehicle was living with, as a member of the family of, the owner, without requiring proof of consent. The Schmitts’ son was living with them at the time of the collision. The Schmitts were vicariously liable for the negligent actions of their son. Block was not credible when it came to matters related to the financial implications of her injuries. However, she was generally credible with respect to matters related to her physical injuries and their impact on her function. The collision caused Block to suffer moderate to severe soft tissue injuries to her neck, upper back, shoulders, and lower back. It also caused her to suffer aggravation of a pre-existing degenerative condition in her cervical spine, shoulder injuries, headaches, difficulty sleeping and fatigue. Block continued to suffer from her shoulder injuries. The low back pain decreased over the years but remained unresolved and was aggravated by certain activities. Her shoulder, neck, and upper back pain improved but was chronic. Block continued to have difficulty sleeping. Her injuries interfered with her work, home and recreational activities. They also affected her mood and her relationship with her family and friends. The defendants did not establish a failure on Block’s part to mitigate her damages. Block was awarded $215,557 in damages, comprised of $85,000 in non-pecuniary damages, $8,719 in special damages, $20,000 for past loss of earning capacity, $60,000 for future loss of earning capacity, $39,966 for loss of housekeeping capacity and $1,872 for the cost of future care.

Block v. Schmitt, [2019] B.C.J. No. 1764, British Columbia Supreme Court, P.K. Shergill J., September 18, 2019. Digest No. TLD-October282019005