Does a dealership have a responsibility to make sure vehicles on the lot aren’t stolen? How does the court apportion liability when any number of people could be at fault?
In one of the wildest liability cases before the BC courts in recent years, Justice Kelleher was asked in recent case to determine liability for multiple injuries and losses that occurred over the course of the following chain of events (Provost v Bolton 2017 BCSC 1608):
- A dealership manager left a large truck running, with the keys in it, outside a detail bay. The dealership was located at the bottom of Terminal Avenue in Vancouver. Anyone familiar with Vancouver will know Terminal Avenue is a very busy area with significant foot traffic.
- A man called David Bolton stole the truck, and careened off the lot and onto the busy streets.
- The police tracked Mr. Bolton down just a short while later as he was sitting in the parked truck in an alley. Rather than submitting to arrest, Mr. Bolton backed into the police car behind his vehicle, mildly injuring an officer. He then took off down the alley, hitting a second police car head on and at speed. The police officer in that vehicle was very seriously injured.
- Mr. Bolton then took off in the truck. A police officer in a marked vehicle took off in pursuit, contrary to instructions from his superiors. That police officer had heard his colleague had been seriously injured, and chose not to obey orders because Mr. Bolton had “already hurt our guy.” Another police vehicle joined him for similar reasons. Both were aware they were acting contrary to police policy.
- Mr. Bolton was weaving in and out of traffic at high speeds as he was under pursuit. As he flew through an intersection, trying to make a tight right turn, he smashed into a vehicle waiting to turn left. The woman in that vehicle was also seriously injured.
- Mr. Bolton continued on. By this time, the truck was seriously damaged and trailing smoke. He drove to another dealership and tried to steal a new vehicle to replace the damaged truck. As he was getting into an SUV, the police caught up with him and were able to pull him out of the vehicle and arrest him.
Justice Kelleher was left to apportion liability between the first dealership, Mr. Bolton, and the police officers who engaged in the hot road pursuit of Mr. Bolton despite instructions not to. Liability needed to be apportioned not just once, but for each of the injuries sustained above and for the damage to the police cars.
While Mr. Bolton very clearly shouldered the majority of the blame, his counsel argued that the pursuing police officers and the dealership had both contributed to the damages. Justice Kelleher agreed, ruling that it was reasonably foreseeable that the truck would be stolen, and that a stolen vehicle would cause serious damages and injuries. This decision creates a novel duty of care in British Columbia, and dealerships are now responsible for securing vehicles on their lots to ensure they cannot be stolen.
After a lengthy consideration of other contributing factors, Justice Kelleher summarized the principles of apportionment of liability and apportioned as follows:
 There is no dispute that the most blameworthy tortfeasor in this case was Mr. Bolton. He stole the Truck and engaged in a flight from the police that involved numerous breaches of traffic laws. He concedes that he was driving dangerously. He had attempted an illegal pass of Mr. Laughlin’s stationary vehicle. He encroached upon Ms. Brundige’s lane as he turned right onto No. 5 Road. I assess his blameworthiness at 70% in the action brought by Ms. Brundige and 85% in the actions brought by the Attorney General and Constable Provost.
 Dueck’s negligence created the situation that was highly tempting to any opportunistic would be thief. Given the character of the dealership location, the size of the Truck, and the complete lack of care exercised by Dueck staff, I assess Dueck’s blameworthiness at 15% in all three actions.
 As for the RCMP, certain members failed to comply with a direct order. They continued a pursuit when it was unsafe to do so. They did not avail themselves of an opportunity to de-escalate the situation. They created conditions that spurred Mr. Bolton to drive in a highly erratic and dangerous fashion at the location of the Brundige collision. I conclude that their blameworthiness is difficult to distinguish from that of Dueck. Both equally contributed to the dangerous situation that resulted in the collision. I conclude that the Minister of Justice’s blameworthiness should be assessed at 15% in Ms. Brundige’s action.
 In sum, I apportion liability as follows:
1. In the action brought by Ms. Brundige, liability is to be apportioned 70% to Mr. Bolton, 15% to Dueck, and 15% to the Minister of Justice;
2. In the action brought by Constable Provost, liability is to be apportioned 85% to Mr. Bolton and 15% to Dueck; and
3. In the action brought by the Attorney General of Canada, liability is to be apportioned 85% to Mr. Bolton and 15% to Dueck.