Court Refuses to Re-open Issue Where ICBC Fails to Pursue "Seatbelt Defence" During Liability Trial
Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing whether ICBC could re-open a trial to raise the seat-belt defence where they failed to advance such a claim during a liability only trial.
In yesterday’s case (Matheson v. Fichten) the Plaintiff was injured in a 2009 collision. The matter proceeded to trial first on the issue of fault. Prior to trial the Plaintiff admitted that “at the time of the accident she was not wearing the lap and shoulder seatbelt“. ICBC did not lead this evidence at trial. Ultimately fault for the crash was split between the motorists involved on a 90/10 basis. Prior to entering judgement ICBC sought to re-open the liability trial to permit them to lead evidence of contributory negligence with respect to the seatbelt issue. Madam Justice Smith refused to do so providing the following reasons:
 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.
 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.
 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…
 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.