10% and 15% Contributory Negligence Findings for Failure to Wear a Seatbelt

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, allocating contributory negligence to plaintiffs who were injured in a vehicle collision without their seatbelt.

In today’s case (Goronzy v. Mcdonald) a multi vehicle collision occurred.  Two of the plaintiffs who sustained injuries were not wearing a seatbelt and, as a result, were found partly at fault for their own injuries.  In particular the driver of a taxi was found 10% contributorily negligent and his rear seat passenger 15%.

In reaching these differing percentages Madam Justice Humphries provided the following reasons:

[184]    The issue is: did each of these plaintiffs fail to take reasonable precautions to protect himself from the consequences of the defendant’s negligence?

[185]    While all counsel have provided detailed submissions on the significance of Mr. Little’s opinion, I do not think it appropriate to delve into a quasi-medical analysis of the use of a seat belt, the nuances of occupant movement, and the effect on the ultimate injuries, since the evidence I have on the latter point is quite limited. If liability had not been severed from damages in this case, an approach that is always troublesome for the trier of fact, I might feel more comfortable looking at the specific injuries, but even there, it is difficult to see why it matters in this case.

[186]    The important factors are those that relate to comparative blameworthiness, and a global assessment of whether the blameworthiness of the respective plaintiff would have prevented or lessened his injuries. It would not be appropriate to set a percentage per injury.

[187]    The Ontario Court of Appeal in Snushall cautioned against a prolonged inquiry into blameworthiness unless the factors going into the inquiry were fairly obvious.  Otherwise, the approach should be practical and the apportionment of responsibility just and equitable.

[188]    Both Mr. Tesar and Mr. Rai took a risk by not wearing a seat belt, which a reasonably prudent person would do, even if, in the case of Mr. Rai, he would not be fined for not doing so.

[189]    In the circumstances of this case, I take into account the blameworthiness associated with Mr. McDonald, whose failure to consider the danger he put himself and others in by driving while consistently failing to take his medication, which was further exacerbated by his failure to consider the aura he experienced the morning of the accident, resulted in the head-on collision.

[190]    For Mr. Tesar, it was not seriously contested that significant injuries would have occurred, even if seat belts had been worn. I do not see how it could be otherwise. On the other hand, it is conceded that there is some contributory negligence. Again, I do not see how it could be otherwise. Mr. Tesar was flung, unrestrained, about the back seat, coming into contact with surfaces he would not have come in contact with had he been wearing a seat belt.

[191]    For Mr. Rai, I accept that he would have suffered injuries in this collision even if he had worn a seatbelt.  On the other hand, all three experts agreed that the use of a seatbelt, except in rare cases, reduces or prevents injury.  Mr. Rai, who had an airbag, would have protected himself further from some of the injuries he suffered by wearing a seatbelt. However, considering the evidence that he would have suffered a head injury, regardless of whether or not he wore a seatbelt, the failure to use a seatbelt in his case is not as serious as it is for Mr. Tesar.

[192]    I set the degree of contributory negligence for Mr. Tesar for failing to wear a seatbelt at 15%, and to Mr. Rai for failing to wear a seatbelt at 10%.

bc injury law, contributory negligence, Goronzy v. MacDonald, Madam Justice Humphries, seatbelt

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ERIK
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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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