Case-Comment-McEvoy-vs-McEachnie-Insurance-Law-Bulletin-January-2009
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Case-Comment-McEvoy-vs-McEachnie-Insurance-Law-Bulletin-January-2009

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2 Pages
English

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INSURANCE LAW BULLETIN Insurance Law Issue 1 • January 2009 CASE COMMENT: MCEVOY V. MCEACHNIE, 2008 BCSC 1496 On November 4, 2008, the Supreme Court of British Columbia released its decision in McEvoy v. McEachnie, 2008 BCSC 1496 and ruled that the defendant, William Forster, had consented to Robyn Carly McEachnie, a Contributors in this complete stranger, operating his vehicle on June 20, 2004. issue: Mr. Forster’s 2000 Jeep TJ crashed into a ditch that evening. Three of the four passengers sued for injuries they claim Robert B. Swift were caused by the accident. 604.643.2974 rbswift@davis.ca Mr. Forster had given his daughter, Stephanie Forster, day-to-day control of the Jeep. The title to the Jeep remained Davis LLP’s Insurance Diana L. Dorey in his name. Mr. Forster made it clear that only she was to Law practice group has 604.643.2919 extensive experience in dldorey@davis.ca drive the vehicle, and that she should never drink and drive. handling complex insurance Stephanie and Robyn spent the evening of June 20, 2004 defence claims. Many of our Karen Leung lawyers are seasoned in a bar with friends. When Stephanie became intoxicated, 604.643.2924 litigators that are kleung@davis.ca Robyn became the evening’s designated driver. Two friends experienced at all levels of court and are pioneers in were also offered a ride. At no point did anyone ask Mr. alternative dispute resolution Forster if Robyn ...

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BULLETIN
Insurance Law
Issue 1 • January 2009
Contributors in this
issue:
Robert B. Swift
604.643.2974
rbswift@davis.ca
Diana L. Dorey
604.643.2919
dldorey@davis.ca
Karen Leung
604.643.2924
kleung@davis.ca
Davis LLP
’s Insurance
Law practice group
has
extensive experience in
handling complex insurance
defence claims. Many of our
lawyers are seasoned
litigators that are
experienced at all levels of
court and are pioneers in
alternative dispute resolution
including arbitration,
mediation and negotiation.
Our Group draws upon the
depth and breadth of our
full-service firm when
handling cases and advising
clients. We offer our clients
a team approach to find
creative solutions that allows
cases to be resolved in a
cost- effective manner.
INSURANCE LAW
© Davis LLP, 2009
Page 1
CASE COMMENT:
MCEVOY V.
MCEACHNIE, 2008 BCSC 1496
On November 4, 2008, the Supreme Court of British
Columbia released its decision in
McEvoy v. McEachnie
,
2008 BCSC 1496 and ruled that the defendant, William
Forster, had consented to Robyn Carly McEachnie, a
complete stranger, operating his vehicle on June 20, 2004.
Mr. Forster’s 2000 Jeep TJ crashed into a ditch that evening.
Three of the four passengers sued for injuries they claim
were caused by the accident.
Mr. Forster had given his daughter, Stephanie Forster,
day-to-day control of the Jeep. The title to the Jeep remained
in his name. Mr. Forster made it clear that only she was to
drive the vehicle, and that she should never drink and drive.
Stephanie and Robyn spent the evening of June 20, 2004
in a bar with friends. When Stephanie became intoxicated,
Robyn became the evening’s designated driver. Two friends
were also offered a ride. At no point did anyone ask Mr.
Forster if Robyn could drive the Jeep.
The accident occurred shortly after Robyn negotiated a
left curve and the Jeep accelerated in speed.
Stephanie was found to have caused the accident. As a
consequence of her impairment, she negligently grabbed the
steering wheel and the Jeep swerved off the highway. Robyn
was not negligent. None of the other passengers contributed
to Stephanie’s negligence.
Rogers J., of the Supreme Court, concluded that
Stephanie was indeed “driving or operating the motor
vehicle” within the meaning of section 86(1) of the
Motor
Vehicle Act
, R.S.B.C. 1996, c. 318 (the “
Act
”) when the Jeep
crashed into the ditch.
Mr. Forster, of his own free will, turned over the Jeep’s
keys to Stephanie. Similarly, Stephanie freely gave the keys
to Robyn. Notwithstanding Mr. Forster’s clear restriction
that only Stephanie was to drive the Jeep, he expressly or
impliedly consented to Robyn’s operation of the vehicle.
Rogers J. found that he also expressly consented to
Stephanie’s operation of the Jeep, notwithstanding she was
drunk and thus in violation of another of his restrictions.
© Davis LLP, 2009
Page 2
.
Mr. Forster imposed restrictions on the use
of the Jeep to ensure the safety of his daughter
and the vehicle. Rogers J. concluded that Mr.
Forster would have consented to whatever
Stephanie used the Jeep for so long as that use
was aimed at accomplishing one or both of those
goals. The decision to have Robyn drive met
both of Mr. Forster’s goals, and he was found to
have impliedly consented to her possession of
the Jeep.
Mr. Forster was found liable for Stephanie’s
negligence pursuant to section 86(1) of the
Act
.
In short, this decision does not change the
law of vicarious liability with respect to car
leasing and car rental companies in British
Columbia.
The decision confirms that result in
Morrison (Committee of) v. Cormier Vegetation
Control Ltd.
, [1996] B.C.J. No. 2601 (C.A.), and
in
Barreiro v. Arana
, 2003 BCCA 58, in that so
long as the transfer of car keys from the owner
to the second party is done by the free exercise
of the owner’s will, and the second party freely
gives the third party the keys, the owner has
consented within the meaning of section 86(1)
of the Act to the third party’s possession and use
of the vehicle, and is liable for the second
party’s and third party’s actions.
The question of consent is an important one
where the owner is exposed to vicarious liability
for the negligence of its driver.
Without
consent, the owner is not vicariously liable for
the driver's negligence.
We expect the Court of
Appeal will be asked to reconsider the issue of
whether the father's consent was vitiated in the
circumstances of this case, and whether it is
reasonable to hold the father vicariously liable
for his daughter's driving negligence given the
restrictions he had imposed on her usage of the
vehicle.
For these reasons this case is of interest
to the automobile leasing industry and we will
continue to monitor its progress.
Please click here to link directly to the
McEvoy
v.
McEachnie
decision:
http://www.canlii.org/eliisa/highlight.do?langua
ge=en&searchTitle=Search+all+CanLII+Databa
ses&path=/en/bc/bcsc/doc/2008/2008bcsc1496/
2008bcsc1496.html
.
For more
information please
contact:
Robert B. Swift
604.643.2974
rbswift@davis.ca
Diana L. Dorey
604.643.2919
dldorey@davis.ca
Karen Leung
604.643.2924
kleung@davis.ca