In personal injury cases, contributory negligence is sometimes pled on part of the defendant or the insurer of the plaintiff. It arises from situations whereby the plaintiff contributed to the accident and thereby caused some or all of the harm that he or she suffered as a result. Contributory negligence is dealt with in the Negligence Act of BC. Section 4 of the Act states the following:
Liability and right of contribution
4 (1) If damage or loss has been caused by the fault of 2 or more persons, the court must determine the degree to which each person was at fault.
(2) Except as provided in section 5 if 2 or more persons are found at fault
(a) they are jointly and severally liable to the person suffering the damage or loss, and
(b) as between themselves, in the absence of a contract express or implied, they are liable to contribute to and indemnify each other in the degree to which they are respectively found to have been at fault.
Contributory negligence is a fairly popular defence used by defendants or ICBC in vehicle accident claims. One of these is what has been coined the “seatbelt defence” This defence is used by the defendant to pin some or all of the cause of the accident on the plaintiff. The seatbelt defence finds its roots in Yuan v Farstad, a 1967 British Columbia Supreme Court decision where Justice Monroe apportioned 25% of the liability to the deceased plaintiff for not wearing an available seatbelt and 75% to the defendant for causing the accident. The motor vehicle collision in that case caused the plaintiff to eject from the vehicle, causing him fatal injuries. At trial it was revealed that the plaintiff did have an available seatbelt but elected not to fasten it. This principle was further articulated by Justice Cory of the Supreme Court of Canada:
It has long been recognized that all occupants of a motor vehicle have a duty to wear their seat belts . . . Canadian Courts have recognized that passengers and drivers have a duty to ensure their own safety in a car by wearing seat belts. A failure to do so will result in an assessment of contributory negligence against that person. . . .
The Courts in this country have consistently deducted from five to 25 percent from claims for damages for personal injury on the grounds that the victims were contributorily negligent for not wearing seat belts. This has been done whenever it has been demonstrated that the injuries would have been reduced if the belts had in fact been worn.
While the seatbelt defence is increasingly used in personal injury and ICBC cases, it’s not applied without reservations. Courts have expressly articulated that there must be a cause-and-effect relationship between an unfastened seatbelt and the injuries suffered. In other words, there must be convincing evidence that the failure to wear a seatbelt caused or aggravated an injury suffered. Absent this logical nexus, the courts are reluctant to apportion liability between the parties, despite the prevalence of the seatbelt defence.
Join Kautz Injury Law again next week as I, Darren Kautz, will discuss another area of personal injury law.