In Mosimann v. Guliker, the Plaintiff was injured in three motor vehicle collisions, one of which she was not wearing her seat belt. Consequently, the Plaintiff brought ICBC claims for non-pecuniary damages, as well as other types of damages. With respect to the accident in which she was not wearing a seat belt, counsel for the Plaintiff adduced expert evidence that she still would have injured herself by hitting her head on the dashboard even if she were wearing a seat belt. Counsel for the Plaintiff argued that an adverse inference should have been drawn for the Defendant’s failure to call any expert evidence with respect to the seat belt issue, however the Court rejected this notion. The Court would eventually assess a finding of 25% contributory negligence against the Plaintiff for not wearing her seat belt.

 

[31] The plaintiff’s counsel submitted that the court ought to accept Mr. Lukar’s evidence on the basis that an adverse inference could be drawn from the defendants’ failure to produce an expert report. That is not, in my view, a proper approach to opinion evidence. While it may be risky, counsel are entitled to rely on cross-examination and argument in relation to an expert witness as with any other witness. The defendants referred to Lakhani v. Samson, 1982 CarswellBC 2262, [1982] B.C.W.L.D. 1126, 70 B.C.L.R. 379 a decision of McEachern C.J.S.C. 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.

 

[32] Sometimes experts state the obvious, in which case they are superfluous. Sometimes they do not. On those occasions, it is up to the trier of fact to decide whether the inference the expert invited has the authoritative force of training or experience, or whether it is just not helpful. Having done my best to assess Mr. Lukar’s surprising conclusion – that failure to wear a lap belt would have made no difference in this face-hit-the-dashboard collision – I am simply unable to say that I am persuaded that that is the correct inference. I assess the plaintiff’s contributory negligence at 25%.

If you have been injured in a motor vehicle accident, ICBC may try to argue that you contributed to the severity of your injuries by not wearing a seatbelt. Just because you were not wearing one does it mean that there will be an automatic deduction to the amount awarded for your injuries. The Defendant must still prove that it was unreasonable for you not to wear a seatbelt, and must also prove that your losses would have been less severe if you had in fact worn a seatbelt.

 

In Matheson v. Fichten, the Plaintiff was injured in a motor vehicle accident, and consequently brought an ICBC claim for damages. At issue was the contributory negligence of the Plaintiff for not wearing a seatbelt, something the Plaintiff admitted to prior to trial. However, ICBC’S lawyer did not raise the issue of contributory negligence during the trial, despite it being raised in the pleadings. Before the judgment was entered, ICBC’S lawyer sought to re-open the trial in order to argue the seatbelt issue. The Court refused.

 

[4]             Although the Reasons for Judgment state (at para. 5) that there is no allegation of contributory negligence against the plaintiff, in fact, the defendant Harmandeep Singh Bahniwal did allege in his pleadings that the plaintiff was contributorily negligent in that she failed to use her seat belt or failed to have her head rest properly adjusted.

 

[5]             Further, the defendants produced evidence on the application that at the plaintiff’s examination for discovery on November 3, 2011, she admitted that at the time of the accident she was not wearing the lap and shoulder seatbelt.

 

[6]             Despite the pleadings and that admission, the allegation of contributory negligence was not pursued at the trial.  During the three-day trial, neither counsel led any evidence bearing on possible contributory negligence on the part of the plaintiff, nor did counsel for either side refer to contributory negligence in his submissions.  The plaintiff did not testify and her testimony at the examination for discovery was not tendered.  There was no medical evidence with respect to her injuries or with respect to the consequences of her having failed to utilize the seatbelt…

 

[9]             In my view, the defendants had their opportunity at the trial to raise the defence of contributory negligence and to lead evidence in that regard.  They have not satisfied me that there would be a miscarriage of justice if the trial is not re-opened.  While the plaintiff has admitted that she was not wearing her seatbelt, there is no material before me to suggest that medical or other evidence regarding her injuries is available that would possibly change the result of the trial.  Finally, it is likely that the trial would have been conducted differently if the contributory negligence had been pursued, and it would be unfair to the plaintiff to require the trial on liability to be re-opened at this stage.

In Gilbert v Bottle, the Court rejected ICBC’S  lawyer’s argument that the Plaintiff’s damages should be reduced for failure to wear a seatbelt.

 

[21]           When a plaintiff contributes negligently to causing his or her own injury, pursuant to s. 4 of the Negligence Act, R.S.B.C. 1996, c. 333, 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 (CanLII), 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 (CanLII), 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…

 

[53]              Despite his able submission, I cannot agree with defence counsel.  In my view this case is not analogous to Thon, which concerned plaintiffs who knowingly rode in an area of a vehicle not equipped with seatbelts (having done so in the same area earlier in the day).  In this case, the backseat of the Capri was equipped with two seatbelts but one was affixed to the baby seat and the other was located in the position occupied by Mr. Wycotte.  Ms. Gilbert was unaware of this situation until after she got in the car and, by that time, Mr. Bottle had pulled away.  Thereafter, her attempts to access the seatbelt used by the baby seat were unsuccessful, as were her attempts to persuade Mr. Bottle to stop the car and let her out.

 

[54]           In a perfect world Ms. Gilbert would have noticed the baby seat and checked the availability of seatbelts in the backseat before she got into the Capri.  It was dark outside, however, and I do not consider her failure in this regard to amount to a want of reasonable care for her own safety.  In any event, even if she had done so, moved the baby seat and used the now available seatbelt there is no evidence that it was operating properly and I have not found her injuries would have been reduced by seat belt usage.

 

[55]           If I am wrong and Ms. Gilbert failed to take reasonable care for her own safety either by failing to determine Mr. Bottle’s state of sobriety or assuming a position in the vehicle unequipped with an available seatbelt I would have found her comparative degree of fault was minimal.  Mr. Bottle drove in a criminally dangerous manner, while intoxicated, and thus departed dramatically from the relevant standard of care.  Ms. Gilbert, on the other hand, failed to elicit information that would have protected her from the terrible risk created by Mr. Bottle’s serious driving misconduct.  In these circumstances, at most I would have assessed her contributory negligence at 5%.