Siskinds LLP personal injury lawyer, Victoria Edwards, was recently published in The Lawyer’s Daily.
This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca),part of LexisNexis Canada Inc.
Read the full article below.
Victoria Edwards – The Lawyer’s Daily – Posted: November 21, 2022
A recent Ontario Superior Court of Justice case, Desrochers (Litigation guardian of) v. McGinnis  O.J. No. 3891, revisited the principles of proving negligence in a case where the plaintiff, Megan Desrochers, was injured while operating the defendants’ all-terrain vehicle (ATV). (For link to part one of this series, see below).
Standard of care
The real issue in this case is whether any of the defendants breached the standard of care. The general approach to determining the appropriate standard of care is found in Ryan v. Victoria (City)  1 S.C.R. 201 at para. 28:
Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards.
With respect to each defendant:
Grant McGinnis, the father of Patrick McGinnis (Desrochers’ then-boyfriend) and the owner of the ATV, had not personally observed Desrochers on the ATV, but he understood that she had ridden on the property and had received instructions on how to operate it safely. Grant knew that Patrick was experienced in operating the ATV and had no reason to think that he would not operate it safely. Justice Patrick Hurley found that Grant had not breached the standard of care.
The plaintiffs, Desrochers and her parents, then argued that even if Grant was not negligent, as the registered owner of the ATV he would be statutorily liable due to s. 192(2) of the Highway Traffic Act:
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.
Justice Hurley concluded that Grant McGinnis had consented to Patrick operating the ATV. His consent did not carry over to Desrochers when she started driving it. Therefore, Grant was not liable for Patrick’s negligence.
Catherine McGinnis, Patrick’s mother, had shown Desrochers how to operate the ATV in the months leading up to the accident. She told Desrochers to wear a helmet on the night in question. She had seen Desrochers safely operate the ATV in the field in the past and had no reason to expect her to drive on the public road when she could have returned home through the nearby field as she normally did.
Again, Desrochers was an adult, not under the apparent influence of drugs or alcohol or otherwise incapacitated that evening, and she was a visitor who would be riding the ATV in the company of Catherine’s adult son. Catherine did not have a positive duty, on these facts, to prevent Desrochers from getting on the ATV, to compel her to wear a helmet, or specifically instruct her not to drive back on the public road.
Neither Catherine nor Grant breached the standard of care.
Patrick McGinnis, Desrochers’ then-boyfriend, was in a different position than his parents.
Patrick’s relationship to Desrochers and intimate knowledge of her mental health frailties were relevant. He thought it important enough to her health and safety to control her consumption of prescription medication. He should have exhibited a similar level of concern in her driving a motorized vehicle alone, helmetless, on an unlit rural roadway, with an unmarked curve of more than 90 degrees and with limited experience in the operation of that vehicle.
By his acts and omissions, he failed to exercise the care of an ordinary, reasonable and prudent person taking into account the likelihood of a known or foreseeable harm, the potential for Desrochers to suffer serious injury, and when he could have taken simple steps to prevent that harm from occurring.
The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. This is a factual inquiry.
Justice Hurley found that the probable explanation for Desrochers’ departure from the road was her inability to turn the ATV at the sharp curve. He further found that her failure to steer the ATV adequately was attributable to Patrick’s negligence.
The plaintiffs acknowledged that it was open to the trial judge to make a finding of contributory negligence. Desrochers should have worn a helmet. There was no medical evidence that her brain injury would have been less severe even if she were wearing a helmet but, based on testimony at trial about the importance of helmets and the common-sense inference that a helmet would likely offer some protection, it would be a reasonably prudent step to take. So too would have been returning to the house by way of the field, a route she was familiar with.
In these circumstances, contributory negligence was assessed as 10 per cent.
The actions against Grant and Catherine McGinnis were dismissed. The plaintiffs established liability against Patrick McGinnis.
This is part two of a two-part series. Part one: Reasonable care analysis in all-terrain vehicle accident case.