McLaren v. McLaren Estate, 2010 ABQB 471
Kayla Elizabeth McLaren ("Kayla") was driving with her mother, Sandra Elizabeth McLaren (the “Plaintiff”) when they were involved in a serious collision as a result of snow drifts on the highway. Kayla did not survive and her mother was badly injured. It was common ground that Kayla was negligent in her driving. The Plaintiff (mother) claimed for loss of income, future loss in earning capacity, general damages for pain and suffering and various other losses including housekeeping, out-of-pocket expenses, future treatment costs, a tax gross up and interest.
An issue at trial was whether any contributory negligence should be attached to the Plaintiff for her actions or inactions as a holder of an operator’s license, who was supervising the learner-operator.
The Court found that section 51 of the Traffic Safety Act, R.S.A. 2000, c. T-6 provides an obligation of those holding an operator’s license to supervise those driving with only a learners permit. The Court determined there was more to supervision than reacting to immediate circumstances and that a supervisor’s duty was ongoing. Specifically, the Court found that supervision requires the supervisor to use their experience and greater skill to anticipate problems as well as provide guidance and take charge when trouble is encountered.
The defence lead evidence from Mr. Ridley, a professional truck driver who was operating a large tractor-trailer unit ahead of the Plaintiff and her daughter. Mr. Ridley testified that upon entering the highway, he immediately moved into the centre of the three lane highway to avoid the snow drifts that reached across the entire right lane but did not encroach on the centre lane. Mr. Ridley noticed he was going about 95 km/hr when he first noticed the Plaintiff’s vehicle, which passed him on the right.
The Court found the Plaintiff believed her daughter was a good driver with two and a half years experience. The Court also recognized that people learning to drive must learn how to handle adverse weather conditions and circumstances. The Plaintiff told her daughter to slow down after the first snow drift and first momentary loss of control. She also told her daughter to take her foot off the accelerator after the second drift caused total loss of control.
However, the Court found the evidence of Mr. Ridley persuasive as an example of the perilous circumstances which should have been evident to the Plaintiff as supervisor. Mr. Ridley, an experienced driver, noticed the dangerous conditions and moved into the centre lane to avoid the 8 inch snow drifts. The Court found the Plaintiff should have noticed the peril but did not.
Ultimately, the Court concluded that the Plaintiff was negligent in that she failed to properly supervise her daughter and failed to notice dangerous circumstances or take steps in time to protect her own safety. This negligence contributed to the collision. In assessing the apportionment of fault, the Court considered the fact that the parties were in a learner/supervisor capacity and the Plaintiff was older and more experienced. Furthermore, the Court found the mother/daughter relationship increased the Plaintiff's obligation to supervise and protect her daughter. The Court found the Plaintiff was responsible for her daughter both because of her supervisory position and because she was the child's parent.
The Court concluded that liability should be apportioned 75% to the daughter and 25% to the Plaintiff.