Drivers Responsible for their Passengers, especially Children Passengers

As a driver, you have a responsibility for the safety and care of your passengers.

This responsibility is not only to drive with due care and attention, but also to take reasonable steps to prevent foreseeable injuries.

The duty owed by drivers to their passengers is especially strong for young passengers. In the Supreme Court of Canada case of Galaske v. O’Donnell, [1994] S.C.J. No. 28, the court ruled that children under 16, even though they may “contest it, do require guidance and direction from parents and older persons.”

The Supreme Court of Canada has ruled that the guidance owed to children 16 and under includes ensuring that they properly wear their seat belts. In British Columbia, our traffic laws go a step further and mandate that drivers must not drive a motor vehicle on a public roadway unless all their passengers are wearing seat belts or are secured in an approved and appropriate child restraint system.  Under the Motor Vehicle Act, drivers can be fined $167 if one of their passengers does not wear a seat belt.

In the Galaske case, the Supreme Court of Canada stated:

A driver taking children as passengers must accept some responsibility for the safety of those children. The driving of a motor vehicle is neither a God-given nor a constitutional right. It is a licensed activity that is subject to a number of conditions, including the demonstration of a minimum standard of skill and knowledge pertaining to driving. Obligations and responsibilities flow from the right to drive. Those responsibilities must include some regard for the safety of young passengers. Children, as a result of their immaturity, may be unable to properly consider and provide for their own safety. The driver must take reasonable steps to see that young passengers wear their seat belts. This is so since it is foreseeable that harm can result from the failure to wear a seat belt, and since frequently, a child will, for any number of reasons, fail to secure the seat belt.

The driver of a car is in a position of control. The control may not be quite as great as that of the master of a vessel or the pilot of an aircraft. Nevertheless it exists. Coexistent with the right to drive and control a car is the responsibility of the driver to take reasonable steps to provide for the safety of passengers. Those reasonable steps must include not only the duty to drive carefully but also to see that seat belts are worn by young passengers who may not be responsible for ensuring their own safety.

The above principles were recently considered and applied in the British Columbia case of Vedan v. Stevens, 2011 BCCA 386.

In Vedan v. Stevens, the driver operated a pick-up truck with one passenger inside the vehicle, and four children in the open bed of the pick-up truck. The children were not wearing seat belts, and the judge found that the children could have been seated inside the pick-up truck where there would have been enough seats and seat belts for all of the children. While driving, the children moved about the open bed of the pick-up truck with the driver’s knowledge. The driver had his windows closed, was chatting with the other passenger inside the vehicle and did not have a clear view of the children in the open bed. At one point, a 12 year old child who was riding in the open bed stood up and fell out on to the road. The child was severely injured as a result of the fall and was hospitalized for several weeks.

At trial, no witness gives evidence about what caused the injured child to stand up and fall out of the open pick-up. The trial judge apportioned 75% of the liability onto the driver as he take did take adequate steps to ensure that the children were safe, and further, he placed himself in a position where he was not able to adequately supervise the children. The initial trial judge also apportioned 25% of the responsibility for the injury on the injured child as he stood up in the open bed of the moving pick-up truck, and further he rode in the open bed without a seat belt despite having learned that he should wear a seat belt.

What is particularly interesting is that the trial judge’s decision was overturned on appeal. As it was not clear from the evidence if the injured child had stood up intentionally or even why the injured child had stood up, the Court ruled that the injured child could not bear part of the blame for his injuries. As such, the Court of Appeal varied the trial judge’s finding and placed 100% of the liability upon the driver of the vehicle.

The responsibilities of a driver for his or her passengers are well established. If you are driving with passengers, you must take steps to ensure that they are safe. This is especially true for young passengers.