GROSS NEGLIGENCE AND THE GUEST PASSENGER

Abstract

Issues surrounding “gratuitous” or “guest passengers” in vehicles have come before the courts for centuries. With the advent of the automobile, increasing problems have arisen with attempts to determine the test for liability on the part of the driver if such a passenger suffers injury, death, or loss of property. Although common law in Canada has established that liability hinges on whether or not the driver exercised due and reasonable care, legislation has altered that notion. Nonetheless, enactments requiring that “gross negligence” be shown before liability is imposed have led the courts to different conclusions; as the author illustrates, courts have not always reached agreement in determining the meaning of the phrase “gross negligence”. In this article the author argues that legislation with gross negligence as the test for liability refers to a different standard of care than that of the reasonable man. He does so through an examination of two groups of authorities; those which state or imply that gross negligence refers to something other than the reasonable man, and those which more explicitly use words indicating that a different standard of care is involved. He then examines judicial attempts to define and describe that standard through a discussion of the “greater risk” test, the “very great negligence” test, the “duty to take slight care” test, and the “equal gravity” and “marked departure” tests. In doing so the author concludes that although the tests may not produce identical results, they illustrate the consistency that has developed between the varying judicial approaches to the phrase “gross negligence” in cases involving defendant drivers and guest passengers.