In Desrochers et al v. McGinnis et al the Superior Court of Ontario re-affirmed fundamental principles of tort law, including duty of care, standard of care, causation and contributory negligence. Arguably, the Court also expanded the risk of liability in the context of accidents involving ATVs or other popular motorized vehicles.
The factual circumstances giving rise to the litigation involved an ATV accident resulting in severe brain injury to the Plaintiff, Megan Desrochers. On July 29, 2014, Megan was operating an ATV in Prince Edward County when she veered off the roadway and struck a tree. The Defendant, Patrick McGinnis, who was Megan’s boyfriend at the time, was following her in a truck but did not observe the accident. The Defendant, Grant McGinnis, is Patrick’s father and is the owner of the ATV. The Defendant, Catherina McGinnis, is Patrick’s mother who was at home at the time of the accident.
The Plaintiffs alleged that the Defendants were negligent because they permitted Megan to ride the ATV alone on a public road when they knew or should have known that it was unsafe for her to do so.
Duty of Care:
In determining whether any of the Defendants owed a duty of care, the Court relied on Garratt v. Orillia Power Distribution Corp., 2008 ONCA 422 to reiterate that “establishing a duty of care is a ‘low threshold’ legal requirement”. Justice Hurley decided that the Plaintiffs established a prima facie duty of care for all Defendants.
Standard of Care
Justice Hurley noted that “the real issue in this case, […] is whether any of the defendants breached the standard of care.
According to Justice Hurley, the general approach to determining the appropriate standard of care is found in Ryan v. Victoria (City), 1999 CanLII 706 (SCC), which held that “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”.
Justice Hurley found that the Defendant parents, Catherina McGinnis and Grant McGinnis, did not breach the standard of care. Some of the factual findings taken into consideration were as follows:
[89] Patrick had many years of experience in operating the ATV, apparently without any accidents or careless operation of it. There was no evidence that either Grant or Catherine knew or should have known that he would not operate it safely. They impressed me as parents who, if they were aware that Patrick could not do so, they would not have permitted him to use it, alone or with friends. Although Grant had not personally observed Megan on the ATV, he understood that she had ridden it while at the property and received instruction in its operation. Catherine had ridden the ATV with Megan as a passenger, observed Megan drive it without incident and had given her some instruction in operating it. In her experience, the ATV was only driven around the property, not on a public road, and always at low speeds. Grant was not at home on July 29, 2014 and had no knowledge, before the accident, about Megan riding the ATV that night or planning to do so. Catherine assumed that Megan would be driving the ATV back to the house but there was no evidence that she knew or should have known that Megan would drive on Young Road instead of across the field. She told both Patrick and Megan to wear helmets. Megan 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 Megan from getting on the ATV, to compel her to wear a helmet or specifically instruct her not to drive back on Young Road. I find that neither Grant nor Catherine breached the standard of care.
On the other hand, Justice Hurley found that “Patrick is in a different position than his parents” and that he breached the standard of care. Some of the factual findings which led to a finding of negligence were as follows:
[96] Patrick is in a different position than his parents. First, I find that Megan had received minimal instruction from him in the operation of the ATV and that she had only driven it in an open field under his direct supervision or when he was a passenger. She had little experience in turning the ATV and none with sharp turns. She had no familiarity with riding the ATV on Young Road. I can infer from the evidence that Megan had been a passenger in a car or truck on occasion on Young Road and, because of that experience, may have had some general knowledge of its physical layout. But that is a far cry from driving an ATV alone on a roadway that does not have any artificial illumination when it would be semi-dark out.[8] He gave her no warning or caution about driving on Young Road or how to negotiate the sharp turn. He took no steps to drive in front of her, as he could have, to ensure that she either slowed down or stopped before arriving at the curve. Based on the evidence of the experts, an experienced ATV rider like Patrick would know the effort and level of skill that is necessary to successfully negotiate such a sharp curve. Patrick would have also known that the safe route for person with Megan’s experience would have been through the field, not on the road, but said nothing to her. He could have driven Megan back in the truck and retrieved the ATV later. There were no urgent circumstances that required Patrick to check the lockbox in the truck that night or even drive the truck back to the house. His relationship to Megan and intimate knowledge of her mental health frailties are also relevant – if he thought it was important to her safety and health to control her consumption of prescription medicine, 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° and with only limited experience in the operation of that vehicle. I find, on these facts, that he breached the standard of care. 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 Megan to suffer serious injury and when he could have taken simple steps to prevent that harm from occurring.
Patrick’s credibility appears to have played a critical role in the Court’s analysis. Justice Hurley specifically noted that:
[79] Before I turn to the legal issues, I wish to comment on the credibility of the witnesses and the reliability of their testimony. I found Shawn, Rose, Catherine and Grant to be honest witnesses who did their best to accurately recount the events of 2014, including not only what happened on July 29 but also what transpired before that date. Their interpretations of certain incidents or conversations may have been influenced by the opposing interests they have in the outcome of this lawsuit but that did not detract from their overall credibility. They were truthful witnesses. I cannot say the same of Patrick. He clearly had an agenda, at least at the time of trial: to absolve himself of any potential legal responsibility and to misrepresent the level of Megan’s ability and skill to drive the ATV as of July 29, 2014.
Causation:
The “but for” test is the applicable test for causation. In accordance with Clements v. Clements, 2012 SCC 32 andSacks v. Ross, 2017 ONCA 773 the plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred.
Justice Hurley’s reasoning aligns with the cognitive process required in negligence cases as outlined in Sacks v. Ross, 2017 ONCA 773: “The first is to determine what likely happened in actuality. The second is to consider what would likely have happened had the defendant not breached the standard of care. The third step is to allocate fault among the negligent defendants.”
Justice Hurley found that the probable explanation for Megan’s departure from the travelled portion of Young Road was her inability to turn, or corner, the ATV at this sharp curve. Justice Hurley further found that her failure to steer the ATV adequately and thus avoid leaving the roadway is attributable to Patrick’s negligence.
Contributory Negligence:
Megan’s failure to wear a helmet resulted in a finding of contributory negligence at a factor of 10%.
Justice Hurley reiterated the principle in Snushall v. Fulsang, 2005 CanLII 34 561 (ON CA) that “the plaintiff’s contributory negligence is a failure to take reasonably prudent steps to protect herself from injuries that might result from an accident caused by another’s negligence.”
The Defendants did not make specific submissions on the issue of contributory negligence. There was no medical evidence before the Court to substantiate that Megan’s brain injury would have been less severe if she was wearing a helmet.
It is to be noted that a higher percentage of contributory negligence may attach to a Plaintiff who fails to wear a helmet, in circumstances where there is evidence to support that a helmet would have resulted in less severe injuries.
Conclusion:
The decision in Desrochers et al v. McGinnis et al may result in greater exposure to liability in circumstances where individuals permit others to use ATVs or perhaps other popular motorized vehicles. Based on the Court’s analysis it appears that individuals have a positive duty to consider a multitude of factors including driving experience, mental health frailties, give warning or cautions about driving on certain roadways and in certain conditions where there is foreseeable harm. It remains to be seen whether the Court’s analysis has effectively expanded the risk of exposure to liability in future cases that may arise from similar facts and circumstances.
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