Not Necessarily Negligence to Allow Unlicensed Driver to Operate Car

In George v. Thach, Superior Court Justice Harvey Spiegel ruled that “The failure to possess a lawfully issued operator’s permit does not of itself constitute incompetence or inexperience.” Accordingly, the employer of an unlicensed driver was not vicariously liable for injuries suffered by the driver’s passenger when the driver lost control of the car and crashed it.

The plaintiff George had sued the driver Thach and had originally alleged that the vehicle being driven by Thach at the time of the accident was owned by the defendant HMS Automotive. The plaintiff had also sued Liberty Mutual, his own auto insurer, on the basis that Thach might have been an uninsured motorist. In the event of such a finding, he claimed to be entitled to recover from Liberty. Liberty defended the action and crossclaimed against Thach and HMS for contribution or indemnity. The sole allegation against HMS was that it was liable, as owner of the car, for the negligence of the diver, Thach.

Just before trial, Liberty’s pleadings were amended. Instead of crossclaiming against HMS based on the latter having been the owner of the car driven by Thach (since the evidence had made it clear that HMS was not the vehicle’s owner), Liberty’s new claim was for contribution or indemnity based on HMS being vicariously liable as Thach’s employer. Liberty settled the plaintiff’s claim against Thach and proceeded to trial on the crossclaim.

The evidence showed that Thach had purchased the car in question from a used car dealership. Thach was himself employed by a car dealership, HMS. He had obtained a set of dealer plates from HMS to allow him to take delivery of the cars that he had bought from the other dealership. The owner of HMS admitted that he knew that Thach did not have a valid driver’s licence. (The owner denied having given Thach permission to use the dealer plates though and the evidence was somewhat in conflict on this point.)

Justice Spiegel found that HMS owed no duty of care to the plaintiff and accordingly, could not be liable to Liberty on the crossclaim. However, his analysis actually seems to have been based on HMS having met the relevant standard of care (since if HMS owed no duty of care to the plaintiff, as Justice Spiegel found, HMS would not have been liable even if it had given the dealer plates to Thach, knowing him to be an incompetent driver). As mentioned above, His Honour concluded that allowing an unlicensed driver to operate a car does not, in itself, amount to negligence:

In my view the fact that Thach did not have a valid driver license did not in the absence of any evidence that he was an incompetent driver make negligent driving on his part a consequent risk to a passenger in his vehicle reasonably foreseeable. To paraphrase the words of the Supreme Court in Childs v. Desormeaux, the inferential chain from being an unlicensed driver to reasonable foreseeability that such a driver will drive negligently is too weak to support the legal conclusion of reasonable foreseeability.

As we have already said, if it had been the case that HMS owed no duty of care to the plaintiff, then in theory, there should have been no liability on it even if it had given the dealer plates to Thach, knowing him to be an incompetent driver (or drunk, blind or whatever). The duty of care arises from the relationship between the parties, not from the conduct said to have fallen below the standard (as Spiegel J. acknowledged in para. 35 of his reasons). In this case, Justice Spiegel’s conclusion was that the conduct of HMS, in having given Thach the dealer plates, was not negligent because there was no evidence that Thach not having a valid driver’s licence made him an incompetent driver.

Justice Spiegel also dismissed Liberty’s crossclaim on the basis that it was prescribed. Liberty argued that it had not learned the relevant facts about HMS having given Thach the dealer plates until well within the applicable six year limitation period. However, Spiegel J. found that Liberty’s crossclaim amounted to the assertion of subrogated rights acquired from the plaintiff. Since the plaintiff knew the relevant facts at the time of the accident and Liberty could not stand in a better position than the plaintiff from whom its rights were derived, the crossclaim was found to have been prescribed.

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