Riding leisure vehicles, including all-terrain vehicles (ATVs) and snowmobiles, is a fun outdoor experience. However, such vehicles can be dangerous and can cause serious injury in the event of an accident.

This article highlights some tips for avoiding injury when riding vehicles for recreation. It also considers whether an individual who borrowed a vehicle and was subsequently injured in an accident may have a claim against the vehicle owner. 

Tips for helping to reduce the chance of a leisure vehicle accident

The Ontario Government has published a handbook that contains useful guidance on riding off-road vehicles and snowmobiles. By way of example, before setting off, it is important to:

• understand where the vehicle can be used (some vehicle types are not allowed on all or some public roads in Ontario) and how to operate it safely;
• ensure that you meet any applicable licensing requirements; 
• wear a helmet and protect your eyes and face;
• make sure the vehicle is in working condition;
• check the expected weather conditions;
• consider the possible equipment you may require, such as for first aid and vehicle repair; and
• obey speed restrictions and do not use drugs or alcohol.

The elements of a successful negligence claim 

You might have a basis for a negligence claim if you are injured in an accident due to someone else’s action or inaction. The injured plaintiff needs to be able to prove, on the balance of probabilities, that the defendant owed them a duty of care and breached the standard of care expected of a reasonable person in the circumstances. The plaintiff also must show that the defendant’s breach of the standard of care caused their injury.

Bringing a negligence claim against the owner of a borrowed vehicle

Could an injured person that borrowed a vehicle have a claim against the vehicle’s owner? It is possible.

Canadian courts have been prepared to find that a duty of care may exist when a person allows another to use a motorized vehicle when they knew (or should have known) that the person was either unfit or unable to operate it safely. Such a duty of care has been found in relation to off-road vehicles, including snowmobiles and ATVs.

If such a duty of care is established, the issue becomes whether the person that provided the vehicle fell below the standard of care and whether this caused the injury.

Plaintiff sustained a serious head injury in an ATV crash

The recent case of Desrochers v. McGinnis in the Ontario Superior Court of Justice is an example of a successful negligence claim following an ATV accident. After leaving her boyfriend’s parents’ house as a passenger on an ATV driven by her boyfriend, the plaintiff drove the ATV back toward the house. The couple took the ATV out to retrieve a pickup truck, however, neither party wore a helmet. The boyfriend’s father owned the ATV. 

The plaintiff rode the ATV on a public road to return to the house, followed by her boyfriend who drove the truck. She was not speeding but as she ascended a hill the ATV left the roadway at a curve. The plaintiff sustained a severe brain injury.

The plaintiff sued her boyfriend and his parents, arguing that they owed her a duty of care because she was inexperienced in operating ATVs, had only received minimal instructions from them on how to use them and they should have known that it was unsafe to let her operate the ATV on the public road. She had previously driven the ATV on the parents’ property but did not have a driver’s licence.

Court decided that the three defendants owed the plaintiff a duty of care

Justice Hurley held that the plaintiff had established that the boyfriend and his parents owed her a duty of care. His Honour explained that the owner or person who could control access to the ATV owed a duty of care to a person, like the plaintiff, whom they knew had little experience or instruction in operating one.

His Honour noted that an ATV was “a powerful machine which can result in serious injuries to a driver or passenger … if it is not operated properly.” As such, the probability of harm is foreseeable.

Only the plaintiff’s boyfriend breached the standard of care 

Justice Hurley was sympathetic to the position of the parents. They knew that their son had experience riding the ATV without an accident. The father was not home at the time of the accident and had no idea the plaintiff would ride the ATV. The mother knew that the plaintiff would be driving the ATV but had previously given the plaintiff some instruction. She also told the couple to wear helmets on the night in question and did not know that the plaintiff would return home via the road instead of across the field.

His Honour was critical of the actions of the plaintiff’s boyfriend. He gave the plaintiff no warning about driving on the road or how to turn around sharp curves. He did not drive in front of her to ensure she slowed down. His Honour held that he breached the standard of care by failing to take precautions that a reasonable person would have taken in the circumstances.

The plaintiff left the road because she could not complete a sharp turn. Justice Hurley found the boyfriend liable because his negligence caused the accident. However, his Honour also assessed the plaintiff as 10% responsible due to her failure to wear a helmet.

Contact Campbell Litigation for Comprehensive Advice and Representation in Snowmobile, ATV and Boating Accidents 

Accidents involving leisure vehicles, such as snowmobiles, ATVs, jet skis and boats can cause significant injuries. If you have been injured in an accident, it is important to seek advice as soon as possible and understand whether you have a claim. The trusted personal injury lawyers at Campbell Litigation have substantial experience assisting individuals who have been injured due to a recreational vehicle accident. To arrange a free initial consultation with our team, call us at 519-886-1204 or contact us online.