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Personal Injury Lawyer Ottawa discusses vehicle owner’s vicarious liability
by Denis Alisic
Recently, a Court of Appeal of Ontario decision released on August 10, 2015 in Fernandes v. Araujo overruled a 1952 decision on the issue of vehicle owner’s vicarious liability for negligent use of the owner’s vehicle; where the owner of a vehicle gives the driver permission to possess the vehicle but limits the driver with respect to operation of the vehicle. In Fernandes the Plaintiff, Ms. Fernandes, and the Defendant, Ms. Araujo, were visiting a farm owned by a Mr. Almeida. During their visit they decided to assist him with farm work. After they finished with work, Fernandes and Araujo were given permission by Almeida to drive his ATV on the farm but were specifically told not to leave farm property. Regardless, Fernandes and Araujo left the farm property on the ATV and were involved in a single vehicle roll over a on a public road. Fernandes was seriously injured, and sued Araujo as the driver of the ATV and Almeida as the owner of the ATV.
What the insurance company had to say
Almeida’s insurer Allstate brought a Motion for summary judgment dismissing the action against Almeida as owner of the ATV on the basis that Araujo used the ATV without the consent of the owner to leave the farm. Allstate relied on a 1952 Court of Appeal ruling in Newman v. Terdik. In Newman the court of appeal found vehicle owner not to be vicariously liable for a driver’s negligence even though the driver had the owner’s permission to drive the vehicle on his tobacco farm but did not have the owner’s permission to drive the vehicle on the highways.
In its decision in Fernandes the Court cited a more recent Court of Appeal ruling, released on August 3, 2007 in a lawsuit filed by Tracy Finlayson and Robert O’Connor against GMAC Leaseco Ltd. Tracy Finlayson and Robert O’Connor were injured as passengers in a truck operated by John Simon. At the time of this accident John Simons leased the truck from GMAC but was disallowed, under the terms of the lease, from operating the truck. Nonetheless, The Court of Appeal for Ontario decided that GMAC was still vicariously liable for Simon’s negligence.
The Appeal Court in Finlayson noted that “Possession and operation are not the same thing, in law.“ The Court of Appeal concluded that since GMAC consented to Simon’s possession of the vehicle but did not consent to his operation of it “breach of conditions placed by the owner on another person’s possession of the vehicle, including those relating to who may operate the vehicle, do not alter the fact of the second person’s possession.”
Relying on Finlayson, Court of Appeal decided, in Fernandes that it should now overrule the Newman decision “and declare that it no longer represents” the law in Ontario. The Court concluded that Almeida as owner of the ATV continued to be vicariously liable for all of Araujo’s actions as soon as he gave Araujo permission to drive the ATV. This continued to be true even though the ATV was operated against Almeida’s explicit instructions.
The evidence in this case clearly established that Araujo had possession of the ATV with the consent of Almeida as owner. Almeida’s consent made him vicariously liable for the accident. Any restrictions on the use or operation of the ATV would not release the owner from being vicariously liable for the negligence of the person entrusted with using the ATV.
Ontario Court of Appeal
The Court of Appeal proclaimed that to overrule Newman decision the Court “would enhance rather than undermine the interest of clarity, coherence and predictability in the law.”
Indeed, the Court cited, David Polowin Real Estate Ltd v. Dominion of Canada General Insurance Co, in order to assess the factors and guiding principles that would allow it to overrule its prior decisions. The Court noted that it must consider the “advantages and disadvantages of correcting the error.” The Court proclaimed that it must analyze the following: the nature of the error; the effect and future impact of either correcting it or maintaining the error; the effect and impact on the parties and future litigants; effect and impact of its decision, and effects and impacts on the integrity and administration of our justice system.
Furthermore the Court of Appeal reiterated that discrepancies between Newman and earlier decisions. The Court underlined a continuous chain of subsequent decisions diminishing Newman’s authority. In the end the Court concluded that Newman formed “an anomaly that cannot be supported in principle, one that undermines the coherence of this area of law and that is likely to lead to confusion.”
There are all sorts of laser treatment therapies on the market these days. It’s important that one does complete research before seeking out such treatments. The reality is that laser treatments can also result in very serious accidents. The product or machine can fail, technicians may not be well trained. Lawsuits relating to injury from laser surgery are on the rise, and physicians have been held liable even if they were not personally operating the machinery or performing the procedures.
Health Canada watches over the sale, importation and labeling of laser machines that are used for various treatments such as hair removal and the province of Ontario directs the local public health units to maintain a standard for the equipment such as sanitary conditions. Sadly there isn’t a body that regulates the actual use of the laser machines that emit high-intensity light and can cause severe and permanent injuries. Yet, these machines can be found all over Ontario and Canada in physician’s offices, medical clinics, hair salons and spas.
Our Ottawa injury team was contacted by a 43 year old woman from Cornwall. One day she was receiving laser skin tightening treatment. Like many, she figured there would be no harm in seeking a skin tightening treatment. In fact, it would bring her positive results. She was wrong . Unfortunately following the treatment she sustained second degree burns to her neck which required immediate medical treatment. Our Ottawa injury lawyers worked closely with “CC” to ensure she received maximum compensation for her burn injuries.
Injuries Resulting From Accident:
Our client suffered second degree burn injuries to her neck area from a laser treatment accident. Burns can cause extensive and devastating injuries and Facial burns or neck burns can vary from relatively minor injuries to severe debilitating injuries. Thankfully in our client’s case, her burns were second degree and not all layers of the skin were destroyed.
Compensation for Injury:
Our Ottawa injury lawyer’s set out to help our client and negotiated on her behalf. Eventually, we were able to persuaded and present our facts to the insurance company and we settled CC’s case a private settlement conference without having to go through prolonged litigation proceedings. The result was our client received the compensation she needed and deserved.
If you have been injured as a result of laser treatment, it’s important you know your rights. Contact an experienced personal injury lawyer who knows about burn injuires and laser treatments and find out what options are available to you.
Pembroke Accident: Slip and Fall
Our Ottawa personal injury lawyers received a call one day from a woman. She was going about her daily routine when suddenly she slipped and injured herself. She was unsure of her rights. Can you sue for a slip and fall accident? Who would she sue? Would an insurance company cover her costs? Would an insurance company compensate her for her injuries? What if she knew the person who owned the property? These are all valid questions and questions our Ottawa injury lawyers are asked daily. The most frequent question we get asked is “How much compensation does one receive for a slip and fall accident? ” Our personal injury team listened to all her questions and concerns and then came up with a plan. Our lawyers worked closely with “TB” to ensure she received maximum compensation for her orthopedic injuries. TB was a 40-year-old woman from Pembroke. One day she was going outside to walk her dog. She set out her back porch stairs when suddenly she slipped off of a step and twisted her right ankle. The porch steps were not maintained properly and were missing a plank thus making them too narrow and contrary to the building code.
Injuries Resulting From Accident:
As a result of her slip and fall accident, TB suffered a chipped bone in her foot which thankfully fully healed following conservative treatment. Not all our clients have such luck. Often times in a slip and fall accident, bones break and never heal quite the same. What seems like a small fracture or broken bone can end up being life-altering for some. Thankfully this was not the case for TB.
Compensation for Twisted Ankle Injury:
While every case is different and every injury is different, we were able to help TB get compensation. We worked on behalf of TB and negotiated with the insurance company . We ended up suing her landlord’s insurance company, as well as the property management company’s insurance company. After tough negotiations, we were able to get the insurance company to settle at a private settlement conference without having to go through prolonged litigation proceedings. Our client was very thankful, as she wanted it to be over and done with.
How a slip and fall accident lawyer can help..
If you have been injured in a slip and fall accident, don’t be afraid to ask questions. Your injuries may not be permanent; however that doesn’t mean you shouldn’t be compensated. Our Ottawa personal injury lawyers offer free consultations and can walk you through your rights . It’s important you make an informed decision when it comes to starting a lawsuit. Let us help.