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Liability and inexperienced drivers

Can I be assessed contributory negligence if I am riding with a novice driver who I know to be exceeding his or her license limitations? What is my duty to avoid a potentially dangerous situation as a passenger?

In the recent case of Nahal v. Ram, 2016 BCSC 39 (http://www.courts.gov.bc.ca/jdb-txt/sc/16/00/2016BCSC0039cor1.htm) the plaintiff was involved in a crash while riding as a passenger in the back seat of the defendant vehicle, when it collided with a tree The defence argued that the plaintiff was contributory negligent as he knew that the defendant had a novice drivers license, was an inexperienced driver, had more passengers in the vehicle than was allowed by his novice license and, over the course of the night in question, the plaintiff had several opportunities to remove himself from the situation but did not do so. Mr. Justice Jenkins found that in the case at bar none of the factors submitted by the defence were relevant to contributory negligence. He distinguished the case defence counsel relied on (Wormald v. Chiarot, 2015 BCSC 272) which involved a plaintiff riding as a passenger with a novice driver who had been drinking, had more occupants in her vehicle than it was designed to carry, and was driving occupants with the intention of throwing eggs at people from the moving vehicle – amounting to a finding of contributory negligence on the part of the plaintiff at 40% of fault.

He explained that although inexperienced drivers may be at a greater risk of accidents, a plaintiff is required to take on negligent acts in order to have a contribution to liability:

[80]         In the case at bar, the evidence indicated that Mr. Nahal had never previously been in a vehicle driven by Mr. Ram, but knew Mr. Ram had an “N” or novice designation; was aware of the limitations of an “N” – in particular that it licensed him to have only one non-family passenger in a vehicle he was driving. It also indicated that the plaintiff had opportunities to exit the vehicle prior to the crash but did not ask or attempt to do so. The plaintiff had no role in the accident that occurred and no expectation of what was about to happen based upon the moments leading up to the accident.

[81]         With respect to the opinion of Funt J., I do not find the fact that the plaintiff’s knowledge of the defendant’s novice designation or any of the other factors submitted by the defence in connection with the novice driver designation are considerations relevant to contributory negligence. It is not negligent to enter as a passenger a vehicle driven by a novice driver as that driver has similar obligations to be careful, cautious and alert while driving as those of any more experienced driver. It would be folly to find contributory negligence on the basis of simply being a passenger in a vehicle driven by a novice driver. It may be that inexperienced drivers may be at a greater risk of accidents, but as well, driving on icy roads presents a greater risk of being in an accident as does driving in rainy conditions at night. The risk of an accident may be higher but agreeing to be a passenger in those circumstances does not amount to negligence on the part of the passenger. It is perhaps one thing to be in a vehicle with a novice driver and remaining in a vehicle with a chance to exit knowing the driver is intoxicated, or to participate in or encourage illegal or vandalistic acts while in the vehicle. In the case at bar, the plaintiff took no negligent acts and accordingly there was no contributory negligence.

[82]         To conclude this issue, there is no evidence before me that the plaintiff knew the defendant was a poor or reckless driver or that being a novice driver caused or contributed to the accident.

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