Bowe v. Bowe Appeal
In Bowe v. Bowe, 2022 BCCA 35, the British Columbia Court of Appeal reversed a trial decision (2019 BCSC 1454) involving vicarious liability for a motor vehicle owner whose stepchild was injured in a single-vehicle accident which occurred in the early hours of August 31, 2013.
The plaintiff, Tyson Bowe, who was 15 years old at the time of the accident, was living with his mother, stepfather, and older brother. On the evening prior to the accident, Tyson took his stepfather’s car keys without permission. He subsequently contacted his cousin, Dale Bowe, who was also 15 years old. The two boys took the stepfather’s car for a joyride lasting several hours. The night came to a tragic end when Dale lost control of the vehicle and drove into a tree while the plaintiff was seated in the front passenger seat. The plaintiff suffered a brain injury and right elbow fracture.
The trial was heard before a jury which made awards in relation to damages as well as findings of the respective liability of each of Dale, Tyson, and the stepfather. The jury found that the stepfather was not liable for the accident and found that Dale was 60 per cent at fault, and the plaintiff 40 per cent at fault.
The trial judge then heard an application separate from the trial on the issue of vicarious liability of the stepfather pursuant to section 86(1)(a) of the Motor Vehicle Act (the “MVA”). This section of the MVA states that where loss or damages to persons or property arises out of use or operation of a motor vehicle, and the vehicle is driven or operated by a household family member of the owner, then that family member is deemed to be the agent of the owner and driving or operating the vehicle during his or her employment with that owner. Sub-paragraph (b) pertains to situations where the owner has given express or implied permission to another person to use their vehicle. The object of this section is to diminish the possibility that an injured person will fail to find a solvent defendant against whom they can successfully assert a claim for damages.
A more typical case involving this particular section is where a family member takes a parent’s vehicle without permission and injures another motorist. However, in this case, the plaintiff was the front-seat passenger in a vehicle driven by his cousin, who did not live in the same home. In this case, the injured party was the member of the household who had participated in taking the vehicle without the consent of the owner.
The trial judge found the stepfather vicariously liable, reasoning that the legislature does not speak in vain and that the word “operating” must mean something different than “driving”. He concluded that Tyson, who was seated in the front passenger seat, was operating the vehicle within the meaning of section 86(1)(a) when the accident occurred. As Tyson was living with the owner of the vehicle, the trial judge concluded that the requirements of section 86(1)(a) had been met and he held the stepfather vicariously liable for Dale’s negligence.
The Court of Appeal allowed the stepfather’s cross appeal, finding that the trial judge erred in construing section 86(1)(a) of the MVA and finding that Tyson was operating the vehicle. The Court of Appeal reasoned that an operator of a vehicle must generally have some physical control of the vehicle. As Tyson was seated in the front passenger seat, he was not operating the vehicle, did not engage section 86(1)(a) of the MVA, and the stepfather could not be held liable for Dale’s negligence.
This case may be of interest to anyone with teenagers at home, or who shares their vehicle with other family members, roommates, or friends.