In a recent case of the Superior Court of Justice, Stewart v. The Corporation of the Township of Douro-Dummer, 2018, ONSC 4009, Justice Ricchetti grappled with the issue of what duty of care a taxi driver owes to an intoxicated passenger. The Court concluded that there is no positive duty of care on a taxi driver to ensure that intoxicated adult passengers are or remain buckled.
Background
This case involved a motor vehicle accident which occurred on November 28, 2010. Four men, one of whom was the plaintiff, had been to a stag and doe party and had consumed significant amounts of alcohol. Thereafter, they called a cab to drive them to their respective destinations. The plaintiff was a front seat passenger. As a result of a collision in which the cab was t-boned by another vehicle, the plaintiff suffered serious injuries.
Several actions were commenced in connection to this accident. At the time of trial the parties had entered into a written agreement, whereby they agreed that the taxi driver did not cause or contribute to the accident; the plaintiff was not wearing the seatbelt at the time of the accident; and that the injuries of the plaintiff were more serious than they would have been had he been wearing the seatbelt at the time of the accident.
The only issue to be determined was whether the taxi driver was liable for the failure of the plaintiff to wear the seatbelt. The issue impacted the insurer, which provided uninsured and underinsured insurance to the plaintiff.
Duty of Care
In the decision Justice Ricchetti discusses section 106 of the Highway Traffic Act according to which any person at least 16 years of age and a passenger in a vehicle shall wear a seatbelt. All parties, except the insurer, agreed that there was no Canadian authority on the issue of the duty of care. By contrast, the insurer submitted that Galaske v. O’Donnell, [1994] 1 SCR 670 has established that a driver owes a duty to vulnerable passengers to ensure that passengers wore their seat belts. Justice Ricchetti distinguished this case from the case at bar as it did not involve a taxi driver or a person over 16 years of age. Other cases the insurer relied upon were distinguished from this case and it was concluded that a duty of care owed by a taxi driver to a visibly intoxicated adult person had not been recognized by Canadian courts before.
Cases from other jurisdictions such as the United Kingdom, the United States of America, and Australia are also discussed.
Having concluded that there are no Canadian authorities in support of a positive duty on the taxi driver and upon examining foreign jurisdictions experience to inform the analysis in this case, the Court recognized the onus on the insurer to establish that a prima facie duty of care exists in this case. Then, the onus shifts to the taxi driver to establish that there are residual policy reasons why such duty should not be recognized.
Upon careful analysis of these issues, Justice Riccheti concluded that the insurer failed to establish a prima facie duty of care owed by the taxi driver to the intoxicated passenger. The analysis then continues that even if the Court was wrong on the issue of the duty, residual policy considerations would negate such duty.
Policy Considerations
The policy considerations taken into account were the following:
- The law already imposes a duty on an adult passenger to buckle in any vehicle. Imposing a duty on the taxi driver would run against the spirit of what the legislation imposes.
- There are no valid societal reasons to transfer the duty of care from the intoxicated person to the taxi driver. Intoxication is self-induced and there are no basis to transfer such duty other than the vulnerability of the intoxicated person. Becoming intoxicated is a choice made by the adult and no valid reason is seen to transfer one’s protection of safety to the taxi driver. No benefit to the society is seen from such transfer either.
- The availability of a remedy for the injured party. Such remedy is against the at-fault parties. The remedy is also supplemented by the law recognising remedies when the negligent motorist is uninsured.
- The taxi driver committed no moral wrong. By leaving the choice to the adult to buckle or remain buckled no wrongdoing is committed by the taxi driver. The taxi driver has no financial incentive or disincentive related to whether the adult passenger wears a seat belt.
- Imposition of a duty of care on the taxi driver would make its carrying out unmanageable. Placing such a duty would require the taxi driver to determine whether the adult passengers are intoxicated. Even if a passenger is “vulnerable” due to mental or physical disability, or use of drugs and like, carrying out such duty/responsibility would be difficult for the taxi driver.
- Recognition of a duty of care on the taxi driver could impact the safe use of alternate ways home from intoxicated persons.
- No Duty in other Jurisdictions is Recognized. The Court concludes that no foreign authorities favors a societal interest to impose a duty of care on drivers towards adult passengers, including intoxicated adult passengers.
