Parental Liability in a Motor Vehicle Accident
In the recent decision of Edmondson et al v Edmondson et al, 2022 NBCA 4 (application for leave to appeal to the Supreme Court of Canada dismissed), the Nova Scotia Court of Appeal reviewed a lower court’s assessment of a father’s potential liability for parental negligence in relation to injuries sustained by his son as a result of a motorcycle collision.
On June 30, 2010, the father put his 5 year old son on the back of his Harley-Davidson motorcycle. The motorcycle was not designed to carry more than one person and so the father put his son on a makeshift seat he made himself and which was attached to the rear fender by way of suction cups. The seat did not have a back rest and the boy could not reach the foot pegs. It was undisputed that the seat was not suitable to transport a child as a passenger. The father tied his son to himself with a strap. The son wore plain street clothing and an adult helmet which was much too big for him.
Most unfortunately, as the motorcycle was travelling at approximately 75 km per hour, a vehicle turned left in front of the father and son. The father forcefully applied the brakes causing the motorcycle to skid over 14 meters on its side before colliding with the left turning vehicle. The father and son eventually came to rest under a third vehicle, still strapped together. The son was significantly injured as a result of the accident.
The lower court found the driver of the left turning vehicle to be liable for her negligence in the accident. The issue before the Court of Appeal was the lower court’s refusal to grant summary judgment against the father for liability arising from parental negligence.
In reviewing the decision of the lower court, the Court of Appeal addressed the components of parental negligence as follows:
- Duty of Care: A prima facie duty of care was owed by the father to the son, where, given his relationship of proximity with his son, carelessness on his part could reasonably be contemplated to cause his son damage. Moreover, a parent is in a position of control over a vulnerable child and owes that child affirmative obligations. Indeed, control and vulnerability are what creates this classic duty of care.
- Standard of Care: Reference was made to the safety provisions set out in the Nova Scotia Motor Vehicle Act, confirming that breach of a statutory provision is prima facie evidence of negligence. Such a breach gives rise to civil liability where the statutory provisions are intended to inform or create a standard of care. The father’s breaches of the standard of care were seen to include that the father was not safety-focused in placing his son on the rear “seat;” riding on a motorcycle presents a greater risk than riding in an automobile; and the father’s conduct placed his son at unreasonable risk because:
- A reasonable person would have foreseen the risk of harm in these circumstances.
- There was greater risk of severe injury for the son if he is transported on a motorcycle rather than in an automobile in the event of an accident, particularly in the circumstances of this case, and the risk to the son increases the greater the speed of the motorcycle, even if it is well within the posted limit.
- There was no evidence in the case of any necessity or emergency for the father having transported the son in the manner he chose to do it.
- It would have cost nothing to eliminate the risk in this case. The father should simply not have placed the son on the motorcycle in the circumstances. Moreover, he should certainly not have strapped the two of them together. There was nothing “reasonable” about this.
- Causation: The father’s argument on causation was that the negligence of the left turning vehicle was the sole cause of the accident, and that “but for” the negligence of the left turning vehicle, there would not have been an accident and the son would not have been injured. The Court of Appeal confirmed that to find causation in respect of the father, it would need to find only that the negligence of the father made a difference in respect of the loss. In examining the connection between the father’s conduct and the son’s injuries, the Court of Appeal considered:
- Was the father alive to the fact riding on a motorcycle is inherently riskier than being an occupant in an automobile? The only reasonable answer was yes.
- Was the father alive to the fact the sort of accident which occurred here was not a freak accident but one which is all too often commonplace given the known phenomenon of the “invisible motorcycle”? Applying the reasonable person standard, there could be no question he was well aware of this.
- Was the father alive to the fact that placing his son on a makeshift seat, not properly dressing him, strapping him to his body before taking off and driving at speeds up to 75 kilometres per hour would place his son at significant risk of injury in light of what he already knew with respect to items 1 and 2 above? Again, the only sensible answer was yes. The father’s negligence made a difference.
The Court of Appeal concluded that there was no question that the father exposed the son to an unreasonable risk of injury and that the type of injuries he sustained was precisely of the nature the negligence created. It was sufficient that the father’s negligence was a cause of the harm, it need not have been the sole cause of the injury.
- Remoteness or proximate cause: The Court of Appeal considered whether the father was liable for damages relating to the extent of the son’s injuries, asking whether the father’s negligent conduct was sufficiently related to the particular harm sustained by the son to justify liability or whether it was too far-fetched. The Court of Appeal concluded that there was nothing far-fetched about the types of injuries the son sustained in this case. They were precisely of the kind typically seen with victims of motorcycle accidents. The father’s negligence by placing his son in the position he was in made the father liable for his son’s injuries.
In considering the issue of parental liability, the Court of Appeal concluded that the son was entitled to summary judgment against his father for that liability. Damages and their apportionment were to be determined at a later date.