In Telford v. Hogan, the Plaintiff was injured as a passenger in a single vehicle collision, with the driver of the vehicle being impaired. The Plaintiff commenced an action for damages for pain and suffering, as well as other heads of damages. At a liability only trial, the Court was left to decide what the cause of the accident was, and whether or not the Plaintiff was contributorily negligent for voluntarily accepting a ride with the Defendant. The Court assessed 25% liability against the Plaintiff for interfering with the steering of the vehicle shortly before the accident. The Court also assessed 35% contributory negligence against the Plaintiff for voluntarily getting into a vehicle when it was obvious that the driver was impaired. It was also ruled that the Plaintiff had provided most of the alcohol to the Defendant driver before the two got into the car.

 

[103] Despite the efforts of Ms. Telford’s counsel to distinguish the above cases, all of them bear some resemblance to this case in that the passenger and the driver embarked on a drinking exercise or “hazardous enterprise” where both knew or should have known that the intoxication of the driver was inevitable. I would repeat that Ms. Telford was well aware that Ms. Hogan was drinking over the course of the day and she had particular knowledge of the quantity of what Ms. Hogan consumed as the majority of it came from her own drink container. Although she may not have been aware of exactly what Ms. Hogan consumed from Ms. Ettinger’s cup, she would also have been aware that Ms. Ettinger’s beverage was alcoholic and that Ms. Hogan was sharing that too.

 

[104] It does not follow that since Ms. Hogan was not exhibiting overt signs of impairment, one need not consider Ms. Telford’s lack of judgment in both offering her drink to Ms. Hogan and then getting in the vehicle being driven by Ms. Hogan for the trip home. To the extent that later in the day, Ms. Telford drank alcohol to the point of being severely intoxicated herself confirms that she failed to take reasonable steps to ensure her ongoing ability to assess her safety over the course of the trip home.

In Tataryn v. Browne, the Plaintiffs were farm workers who accepted a ride with the Defendant by getting into the box of the Defendant‘s pickup truck. The Defendant drove off the road, and went down an embankment, thereby injuring the Plaintiffs. The Plaintiffs brought ICBC claims for non-pecuniary damages, as well as other types of damages, against the Defendant, and also alleged that the owner of the truck was vicariously liable for the actions of the driver. The Defendant driver and owner claimed that the majority of the Plaintiffs were contributorily negligent by agreeing to ride in the box of the pickup truck, and also third partied other Defendants into the action.

 

The Court held that the Plaintiffs were not contributorily negligent in any way, ruling that they had little choice but to agree to accept the ride.

 

[284] I have dealt with the circumstances and backgrounds of each of the thirteen workers, I have come to the following conclusions:

1) Sunshine sought workers who were residing in shelters by posting notices of the work. This was not the first time that they relied on such individuals;

2) Mr. Goossen, the manager of Sunshine, was familiar with homeless people. He thought that in hiring these people, he was doing a kindness;

3) Mr. Goossen and his family worked alongside these workers. On the evening of November 17, 2006, Annie, Mr. Goossen and Ms. Ebl performed the same tasks as the plaintiffs, and at the same rate of pay;

4) The farm on which the work was done was in an unincorporated area, having no public transportation, no street lights, or sidewalks;

5) On the evening of November 17, 2006, when the workers were to return home, it was late (after 11 p.m.) and dark and cold;

6) The workers were poor. Most were homeless, on social assistance, and addicted to drugs or alcohol, or both. One plaintiff had a mental health condition for which he was medicated.

[297] The workers were poor, homeless, and sick. They were told by Annie if they did not get in the truck they would have to walk home. Walking home was not an option. It was 15 kilometres to the NLM. It was dark. It was cold. There were no sidewalks, and no public transportation. Some, if not all of the workers, were not properly clothed and Mr. Moore needed his medication.

[298] By necessity, the workers had no option but to be passengers in the truck without seatbelts, either in the cab or the box of the pickup truck.

 

In Erickson v. Sibble, the Plaintiff was injured as a passenger on a bus when the bus driver slammed hard on the brakes in order to avoid running a red light. The Plaintiff brought an ICBC claim for damages resulting from the accident. An issue considered by the Court was any possible contributory negligence of the Plaintiff. The Court considered whether the Plaintiff took reasonable care for her own safety, eventually ruling that she did not, and apportioned 25% liability to the Plaintiff.

 

[70] What then of the role played by Ms. Erickson in the Accident? Did she fail to exercise the level of care for her own safety that is expected of an objectively reasonable bus passenger in the circumstances? If her conduct amounts to a marked departure from the expected standard of care, did it play a causative role in the Accident? Simply put, the test is whether Ms. Erickson failed to take reasonable care for her own safety and, if so, whether her failure was one of the causes of her injuries: Bradley v. Bath, 2010 BCCA 10 (CanLII), 2010 BCCA 1

 

[75] The evidence as a whole indicates that Ms. Erickson slid down the seat and suffered injuries because of a combination of Mr. Sibble’s excessively abrupt and unexpected application of the brakes without warning, and her failure to take reasonable precautions for her own safety by any manner of options readily available to her. Those options included, at a minimum, wrapping her right arm around the stanchion or safety bar (as opposed to grabbing either with her hand and exposing her wrist to damage) or moving down the bench seat to her left and grabbing onto the stanchion pole there. Ms. Erickson’s failure to avail herself of reasonable protective measures represents the taking of an unreasonable risk on her part.

 

[76] In my opinion, Ms. Erickson failed to take reasonable care for her own safety in the circumstances and her substandard conduct played a causative role in her injuries. The conduct of Mr. Sibble and Ms. Erickson was negligent and combined to cause the Accident.

In Nadeau v. Okanagan Urban Youth and Cultural Association, the Plaintiff was attending an outdoor music concert, when he was struck by a car. He had been drinking earlier, although he maintained he was not really drunk. ICBC’S lawyer argued that he should be held to be contributorily negligent for contributing to the injuries he suffered by not taking steps to ensure his own safety.The Court would eventually rule that the Plaintiff was 15% contributorily negligent for failing to keep a proper lookout under the circumstances.

 

[117]     Mr. Nadeau was intoxicated, having twice the legal limit of alcohol in his blood for the purposes of driving. However, he was still able to stand, walk, see a hazard, and take steps to avoid it. He said he may have been tipsy, but he did not appear drunk or significantly intoxicated to any of the other witnesses.

 

[128]     The plaintiff in the case at bar had been drinking and he knew that alcohol was being served at this music concert. He was also aware that vehicles were coming and going from this particular area and that it was dark. He was aware of the vehicle moving in his direction, but assumed that either the driver of the vehicle or somebody else, perhaps security personnel, would direct the vehicle away from the area in which he was crouched down or squatting. He said he saw the vehicle where it should not have been, yet turned his back on it.

 

[130]     I find his lack of care did contribute to the accident when he was first struck by the vehicle. However, as I have pointed out earlier, there was nothing he could have done to prevent the rear wheels of the vehicle passing over him after it had stopped with him still under the vehicle. I apportion the liability 85 percent against the driver and 15 percent against Mr. Nadeau. This apportionment relates to the injuries he suffered when he was first struck by the vehicle and before the rear wheels of the vehicle passed over him. This may create some difficulties in determining which injuries were caused by which incident, but in the particular circumstances of this case, there were two distinct actions by the driver, the first of which Mr. Nadeau was contributory negligent towards the second in which he was not.

In Schneider v. Demarco, the Plaintiffs were injured in a motor vehicle accident, and brought ICBC claims for their injuries. One of the issues that arose was whether or not the two passengers who brought claims were contributorily negligent in any way for accepting a ride with an impaired driver. In the circumstances of this case, there was no finding of contributory negligence.

 

[15]        The court may also find one or both parties at fault. In such case, the question arises whether two of the plaintiffs (the passengers) were contributorily negligent, as they took a ride with a driver who was impaired. In such a case, the plaintiffs may be found to not have taken reasonable care of themselves, and thereby contributed, by this lack of care, to their own injuries.

 

[16]        Courts have typically found such passengers 25-35% contributorily negligent in such circumstances:  see Holton v. MacKinnon, 2005 BCSC 41 (CanLII), 2005 BCSC 41 (30%), Walsh v. Gougeon, [1989] B.C.J. 1446 (25%), Grewal v. Simoncioni Estate, [1991] B.C.J. No. 2329 (35%).

 

[82]        There is no evidence that Mr. Brent DeMarco had an opportunity to avoid the collision upon entering the intersection on the green light. I am unable to conclude that his impairment caused or contributed to the Accident. The fact that Mr. Brent DeMarco’s passengers, Mr. Schneider and Ms. Taranko, took a ride with him in his impaired condition did not cause or contribute to their own injuries, as these were caused by the sole negligence of the defendant Mr. Zhao.

 

In Araujo v. Vincent, the Plaintiff was a 15 year old girl who was injured as a pedestrian in a parking lot, and who consequently brought an ICBC claim for damages through her Litigation Guardian. The Plaintiff had been walking behind a stationary truck at the time of the accident. She had bent down to pick up her cell phone, which she had just dropped, at which point the truck reversed into her. She had been walking towards school after being dropped off by the school bus. An issue for the Court’s consideration was whether or not the Plaintiff should be held to be contributorily negligent in any way. It was ruled by the Court that she should not.

 

[74]        The plaintiff helpfully provided the Supreme Court of Canada authority of Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., 1997 CanLII 307 (SCC), [1997] 3 S.C.R. 1210.  In that case, the Supreme Court of Canada at para. 76 adopted the test for contributory negligence that was set out by Denning L.J. in Jones v. Livox Quarries Ld., [1952] 2 Q.B. 608 (Eng. C.A.) at p. 615, as follows:

 

Although contributory negligence does not depend on a duty of care, it does depend on foreseeability.  Just as actionable negligence requires the foreseeability of harm to others, so [too] contributory negligence requires the foreseeability of harm to oneself.  A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless.

 

[75]        Furthermore, it is worth noting that Ms. Araujo was 15 at the time, and so was not yet a driver.  While she was old enough to know not to run into traffic or behind moving cars, she was perhaps not experienced enough or mature enough to fully appreciate the carelessness of others.  She was, like so many other students, completely comfortable in walking across the parking lot to the Raymer Avenue entrance. 

 

[80]        I disagree with the defendant’s submissions that, in the circumstances of this case, what the plaintiff did was contributorily negligent.  That is because the entire circumstances were such that it was not foreseeable to her that the truck would have reversed in the moment it would take to pick up her phone. 

 

In Lumanlan v Sadler, the Plaintiff was held to be contributorily negligent for getting into a car when the driver was impaired.

 

[15]           The essential consideration on the issue of contributory negligence is whether the plaintiff took reasonable care for her safety by agreeing to become a passenger in a car driven by a person she knew to be intoxicated.  There are many cases that stand for the proposition that contributory negligence is established when a person becomes the willing passenger of a drunk driver, and the proportions of fault vary with the circumstances.

 

[16]           The third party submits that the plaintiff should be found 40% contributorily negligent.  The plaintiff says she should not be found contributorily negligent because she did not have an appreciation of the defendant’s ability to drive before she got into the truck and she had no opportunity to get out of the vehicle once she realized he was driving unsafely.  See: Reekie v. Messervey 1986 CanLII 1103 (BC SC), (1986), 4 B.C.L.R. (2d) 194 (S.C.), aff’d 1989 CanLII 253 (BC CA), (1989) 59 D.L.R. (4th) 481, 36 B.C.L.R. (2d) 316 (C.A.). 

 

[17]           In this case, the evidence establishes that the plaintiff must indeed assume some of the responsibility for her injuries.  The plaintiff knew the defendant was drunk before she got into the truck.  Although she was so drunk she was staggering and she does not recall the drive to the parking lot, she does recall the defendant’s behaviour and testified that she knew he was drunk when they left the bar.  She needed a ride home and either asked him for one or voluntarily accepted one from him.

 

[18]           However, fault must be apportioned on the basis of the nature and extent of the departure from the respective standards of care: Cempel v. Harrison Hot Springs Hotel Ltd. (1997), 43 B.C.L.R. (3d) 219, 100 B.C.A.C. 212 at para. 24.  On that basis, much more of the fault belongs to the defendant.  He was clearly negligent.  Not only was he impaired, but he chose to spin doughnuts, causing the truck to flip over.  He had apparently driven without incident to the parking lot, and it was his decision to drive, while impaired, in such a dangerous fashion in the lot itself that led to the accident.  While his behaviour was fuelled by alcohol, and the plaintiff should have foreseen that a drunk driver could put her in a position of danger, she was exposed to a greater degree of danger by his reckless antics.  His departure from the applicable standard of care was much greater than the plaintiff’s.  I find the appropriate percentage of contributory negligence in all these circumstances to be 25%.

In Gilbert v Bottle, the Court summarized the law of contributory negligence.

 

[21]           When a plaintiff contributes negligently to causing his or her own injury, pursuant to s. 4 of the Negligence Act,  the court must determine relative degrees of fault.  The prerequisite to a liability apportionment is that damage or loss was caused by the fault of two or more persons.  The fault of the plaintiff at issue is the failure to take reasonable care for his or her own safety:  Bradley v. Bath, 2010 BCCA 10, paras. 24-27

 

[22]           The onus is on the defendant to establish contributory negligence.  Once established, apportionment is based on the degree to which each person was at fault, not on the basis to which each person’s fault caused the damage or loss.  In assessing comparative fault, or blameworthiness, the court must consider the degree of risk created by each of the parties and apportion liability based on the nature and extent of each party’s departure from the relevant standard of care.  The levels of fault under consideration may vary from a reckless disregard for safety to a minor lapse of care:  Cempel v. Harrison Hot Springs, [1997] B.C.J. No. 2853 (B.C.C.A.), paras. 23-24; Alberta Wheat Pool v. Northwest Pile Driving Ltd., 2000 BCCA 505, para. 46; Bradley, para. 24.

 

[23]           In motor vehicle accident cases the defence of contributory negligence may be advanced in a wide variety of circumstances.  Not uncommonly, a plaintiff’s failure to wear a seatbelt is one; voluntarily riding with an impaired driver is another.  In this case, both forms of the defence are advanced on behalf of Mr. Whitford and ICBC.  It is desirable, therefore, to summarise the core ideas that emerge from the authorities in similar cases.

 

[24]           A plaintiff may be found to have failed to take reasonable care for his or her own safety by not wearing an available seatbelt or by accepting a ride in a vehicle not equipped with seatbelts.  If a seatbelt was available but not worn, the evidence must establish that it was operational and the plaintiff’s injuries would have been reduced by usage to justify a finding of contributory negligence.  Although there is no hard and fast rule as to apportionment in cases involving a successful seatbelt defence, the plaintiff is often held to be 10% to 25% contributorily negligent:  Harrison v. Brown, [1985] B.C.J. No. 2889 (S.C.); Thon v. Podollan, 2001 BCSC 194; Ford v. Henderson, 2005 BCSC 609.

 

[26]           A plaintiff may also be found to have failed to take reasonable care for his or her own safety by accepting a ride with an intoxicated driver when the plaintiff knew or should have known of the driver’s intoxication when the ride was accepted.  An objective assessment of all of the circumstances is required and, where the plaintiff joins the defendant in becoming intoxicated, liability may be imposed taking into account their joint participation in a hazardous enterprise.  In such cases, the plaintiff is often held to be 25% to 40% contributorily negligent:  Pottage v. Patterson reflex, (1980), 24 B.C.L.R. 43 (S.C.); Walsh v. Gougeon, [1989] B.C.J. No. 1446 (S.C.); Neufeld v. Foster, [1999] B.C.J. No. 764; Holton v. MacKinnon, 2005 BCSC 41 (CanLII), 2005 BCSC 41.

 

[27]           In Neufeld, L. Smith J. considered defences of contributory negligence based on both the plaintiff’s failure to wear an available seat belt and voluntary riding with an impaired driver.  The plaintiff, the defendant and others were over-served alcohol at a pub, left the pub intoxicated and were involved in an accident shortly thereafter.  L. Smith J. concluded that the evidence did not prove the plaintiff’s injuries would have been reduced if she had worn the seat belt.  She accepted, however, that the plaintiff knew the driver was intoxicated and failed to show appropriate regard for her own safety by accepting the ride.  In these circumstances, she apportioned liability 50% to the defendant, 20% to the pub and 30% to the plaintiff.

In Beazley v Suzuki Motor Corporation, the Court discussed the law of contributory negligence in the context of seatbelts.

 

[29]           It has been long recognized in British Columbia that a party who fails to use an available seatbelt and sustains injuries more severe than if the seatbelt had been worn will be found to be contributory negligent: Yuan et al. v. Farstad (1967), 66 D.L.R. (2d) 295 (B.C.S.C.); Gagnon v. Beaulieu, reflex, [1977] 1 W.W.R. 702 (B.C.S.C.).

 

[30]           While there appears to have been statistical evidence led in Yuan and in Gagnon, subsequent cases have held that such evidence is not necessary. In Lakhani (Guardian ad litem of) v. Samson, [1982] B.C.J. No. 397 (S.C.) McEachern C.J.S.C. (as he then was) noted at para. 3:

 

I reject the suggestion that engineering evidence is required in these cases. The court is not required to leave its common sense in the hall outside the courtroom, and the evidence is clear that upon impact in both cases the Plaintiff’s upper body was flung or thrown forward striking the dashboard or the steering wheel. And common sense tells me that the restraint of a shoulder harness would have prevented that, and therefore some of the injury from having occurred.

 

[31]           To succeed on the seatbelt defence, the onus will be on the defendants to establish upon a balance of probabilities that the use of a functioning seatbelt would have avoided, or minimized Ms. Spehar’s injuries:  Harrison v. Brown, 1985 CanLII 724 (BC SC), [1987] 1 W.W.R. 212 (B.C.S.C.); Terracciano (Guardian ad litem of) v. Etheridge 1997 CanLII 4357 (BC SC), (1997), 33 B.C.L.R. (3d) 328 (S.C.).

 

[32]           The statistical evidence to be led from Ms. Padmanapan is, in my opinion, not necessary and will not assist me as trier of fact in determining the issue of contributory negligence. If the evidence is not necessary, it does not meet the test of admissibility.

 

[33]           The exclusion of the seatbelt portion of Ms. Padmanapan’s report is premised upon my present understanding as to the basis upon which admission of that report is sought. If the basis for admission of the report changes, perhaps because of evidence the plaintiffs lead at trial, or otherwise, the defendants are at liberty when Ms. Padmanapan testifies to apply for reconsideration of this ruling.