More on ICBC Claims and the Seatbelt Defence
(Image via Wikimedia)
As I wrote in one of my first blog posts in 2008, failing to wear a seatbelt can reduce the level of compensation an otherwise faultless accident victim is entitled to in their personal injury claim. However, this reduction does not flow automatically by failing to wear a seatbelt. The Defendant still bears the burden of proving that it was unreasonable in the circumstances not to wear a seatbelt and further that injuries would have been lessened with proper seatbelt use. Absent such evidence a Plaintiff’s compensation will not be reduced. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Gilbert v. Bottle) the Plaintiff was involved in a single vehicle collision in 2005. She was a passenger in the Defendant’s vehicle. She occupied the back seat between another passenger and a baby seat. Both seatbelts available in the back were inaccessible given this position as one seatbelt was affixed to the baby seat and the other was located where the other passenger was seated. The Plaintiff could have removed the affixed seatbelt herself (as the babyseat was unoccupied) but she did not do so.
The driver was “impaired by alcohol when he approached a corner too quickly and lost control of the vehicle“. The Plaintiff was ejected. She suffered severe injuries including a complicated traumatic brain injury.
ICBC presented evidence that the Plaintiff’s injuries would have been reduced with proper seatbelt use and argued that the Plaintiff’s damages ought to be reduced. Madam Justice Dickson rejected this argument and did not accept ICBC’s expert’s opinion (the Court’s discussion of this can be found at paragraphs 44-48 of the judgement). Madam Justice Dickson made the following findings and provide the following discussion canvassing this area of law:
 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,  B.C.J. No. 2889 (S.C.); Thon v. Podollan, 2001 BCSC 194; Ford v. Henderson, 2005 BCSC 609…
 Defence counsel also submits that Ms. Gilbert contributed negligently to her own injuries by agreeing to ride as a passenger in a position not equipped with an available seatbelt. He says the circumstances are similar to those in Thon and, had Ms. Gilbert exercised reasonable care, she could have avoided her injuries entirely by not assuming the risk of riding in the middle backseat. On this analysis, it is unnecessary to consider the extent to which proper seatbelt use would have avoided or reduced her injuries. If, however, such an analysis is required he says, based on Mr. West’s evidence, those injuries caused by ejection from the vehicle could have been avoided. He concedes that, on a Thon analysis, an apportionment in the 10% range would be appropriate.
 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.
 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.
 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%.