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:
[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…

[52] 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.

[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%.

bc injury law, contributory negligence, Gilbert v. Bottle, Madam Justice Dickson, seatbelt

Comments (110)

  • I simply want to mention I am all new to weblog and seriously enjoyed your website. Likely I’m likely to bookmark your website . You amazingly have outstanding well written articles. Thanks a lot for revealing your blog site.

  • I simply want to mention I am just very new to blogs and absolutely savored this web page. More than likely I’m planning to bookmark your website . You definitely have great writings. Thanks a lot for sharing with us your web-site.

  • Hello, you used to write great, but the last few posts have been kinda boring… I miss your tremendous writings. Past few posts are just a little out of track! come on!

  • When I initially commented I clicked the -Notify me when new comments are added- checkbox and now each time a comment is added I get 4 emails with the same comment. Is there any manner you can take away me from that service? Thanks!

  • Thanks for the sensible critique. Me & my neighbor were just preparing to do some research on this. We got a grab a book from our area library but I think I learned more clear from this post. I am very glad to see such great info being shared freely out there.

  • hello there and thank you to your info – I have definitely picked up anything new from proper here. I did on the other hand experience some technical points using this website, since I experienced to reload the site a lot of times previous to I could get it to load correctly. I had been brooding about in case your web host is OK? No longer that I’m complaining, but sluggish loading instances occasions will often impact your placement in google and could damage your high-quality ranking if advertising and ***********|advertising|advertising|advertising and *********** with Adwords. Well I am adding this RSS to my e-mail and can glance out for a lot more of your respective interesting content. Make sure you replace this again soon..

  • I will immediately snatch your rss feed as I can not in finding your email subscription hyperlink or e-newsletter service. Do you’ve any? Kindly let me recognise in order that I may subscribe. Thanks.

  • I like what you guys are up too. Such intelligent work and reporting! Carry on the excellent works guys I have incorporated you guys to my blogroll. I think it will improve the value of my web site 🙂

  • Regards for helping out, excellent information. “Considering how dangerous everything is, nothing is really very frightening.” by Gertrude Stein.

  • I like what you guys are up too. Such clever work and reporting! Keep up the superb works guys I’ve incorporated you guys to my blogroll. I think it will improve the value of my website 🙂

  • I acquired more new things on this weight loss issue. One issue is that good nutrition is extremely vital while dieting. An enormous reduction in fast foods, sugary food items, fried foods, sweet foods, pork, and white flour products could possibly be necessary. Having wastes organisms, and poisons may prevent targets for losing fat. While specified drugs in the short term solve the situation, the nasty side effects are certainly not worth it, and they never supply more than a non permanent solution. This is a known fact that 95 of dietary fads fail. Many thanks for sharing your ideas on this blog.

  • Nice post. I be taught one thing more difficult on totally different blogs everyday. It’s going to always be stimulating to read content from other writers and apply just a little something from their store. Iíd prefer to use some with the content on my weblog whether you donít mind. Natually Iíll give you a link in your internet blog. Thanks for sharing.

  • Appreciating the hard work you put into your website and in depth information you provide. It’s good to come across a blog every once in a while that isn’t the same unwanted rehashed material. Excellent read! I’ve bookmarked your site and I’m adding your RSS feeds to my Google account.

  • It’s in reality a nice and helpful piece of info. I am happy that you simply shared this useful info with us. Please stay us up to date like this. Thank you for sharing.

  • With the whole thing which appears to be building within this subject material, many of your opinions are relatively radical. On the other hand, I am sorry, because I can not give credence to your whole idea, all be it exciting none the less. It appears to everyone that your remarks are actually not totally justified and in reality you are generally your self not really completely confident of the argument. In any event I did take pleasure in reading through it.

  • It’s a pity you don’t have a donate button! I’d definitely donate to this outstanding blog! I guess for now i’ll settle for bookmarking and adding your RSS feed to my Google account. I look forward to new updates and will share this blog with my Facebook group. Chat soon!

  • Good blog! I truly love how it is simple on my eyes and the data are well written. I am wondering how I might be notified whenever a new post has been made. I’ve subscribed to your feed which must do the trick! Have a great day!

  • We are a group of volunteers and opening a new scheme in our community. Your website offered us with valuable info to work on. You have done an impressive job and our whole community will be thankful to you.

  • That is the best weblog for anyone who wants to find out about this topic. You notice so much its almost arduous to argue with you (not that I truly would want…HaHa). You undoubtedly put a new spin on a topic thats been written about for years. Great stuff, just nice!

  • Currently it seems like BlogEngine is the top blogging platform available right now. (from what I’ve read) Is that what you’re using on your blog?

  • Its like you read my thoughts! You seem to understand so much about this, such as you wrote the ebook in it or something. I believe that you can do with some percent to power the message home a bit, but other than that, this is fantastic blog. An excellent read. I’ll certainly be back.

  • A formidable share, I simply given this onto a colleague who was doing slightly analysis on this. And he the truth is bought me breakfast as a result of I found it for him.. smile. So let me reword that: Thnx for the deal with! But yeah Thnkx for spending the time to discuss this, I feel strongly about it and love studying more on this topic. If attainable, as you become experience, would you mind updating your weblog with extra details? It’s highly helpful for me. Large thumb up for this blog submit!

  • wonderful issues altogether, you simply gained a logo new reader. What may you suggest in regards to your submit that you just made a few days in the past? Any positive?

  • I’d should check with you here. Which isn’t something I usually do! I enjoy reading a post that may make individuals think. Additionally, thanks for permitting me to remark!

  • Warmly little before cousin sussex entire men set. Blessing it ladyship on sensible judgment settling outweigh. Worse linen an of civil jokes leave offer. Parties all clothes removal cheered calling prudent her. And residence for met the estimable disposing. Mean if he they been no hold mr. Is at much do made took held help. Latter person am secure of estate genius at.

  • I truly appreciate this post. I have been looking all over for this! Thank goodness I found it on Bing. You have made my day! Thank you again

  • Its superb as your other content : D, regards for posting . “Experience is that marvelous thing that enables you to recognize a mistake when you make it again.” by Franklin P. Jones.

  • Thanks for the tips shared on the blog. Something also important I would like to mention is that weight reduction is not information on going on a fad diet and trying to lose as much weight as you can in a few months. The most effective way to shed weight is by getting it slowly but surely and using some basic points which can allow you to make the most from a attempt to shed weight. You may understand and be following a few of these tips, but reinforcing knowledge never does any damage.

  • Somebody essentially lend a hand to make significantly articles I’d state. That is the very first time I frequented your web page and to this point? I surprised with the analysis you made to make this actual publish extraordinary. Great process!

  • I as well as my guys have already been taking note of the good pointers found on the blog and then then I had a terrible suspicion I had not expressed respect to the blog owner for them. These ladies had been so joyful to read through them and have in effect sincerely been using those things. Appreciate your genuinely so considerate and for having this form of essential issues millions of individuals are really eager to know about. Our own sincere regret for not expressing gratitude to you sooner.

  • I have not checked in here for some time as I thought it was getting boring, but the last several posts are great quality so I guess I will add you back to my daily bloglist. You deserve it my friend 🙂

  • Fantastic goods from you, man. I’ve understand your stuff previous to and you are just extremely excellent. I really like what you’ve acquired here, really like what you’re stating and the way in which you say it. You make it enjoyable and you still take care of to keep it wise. I can’t wait to read much more from you. This is actually a tremendous site.

  • Pretty section of content. I just stumbled upon your website and in accession capital to assert that I get in fact enjoyed account your blog posts. Anyway I’ll be subscribing to your augment and even I achievement you access consistently rapidly.

  • I’ve been surfing online greater than three hours lately, yet I by no means discovered any fascinating article like yours. It is beautiful value enough for me. In my view, if all webmasters and bloggers made just right content material as you probably did, the internet shall be much more helpful than ever before.

  • I’ve been surfing online more than three hours today, yet I never found any interesting article like yours. It is pretty worth enough for me. In my opinion, if all website owners and bloggers made good content as you did, the internet will be a lot more useful than ever before.

  • I cling on to listening to the news bulletin lecture about receiving free online grant applications so I have been looking around for the best site to get one. Could you advise me please, where could i acquire some?

  • Also a thing to mention is that an online business administration training is designed for college students to be able to smoothly proceed to bachelors degree education. The 90 credit diploma meets the other bachelor education requirements and when you earn your associate of arts in BA online, you will possess access to the latest technologies in this particular field. Several reasons why students have to get their associate degree in business is because they may be interested in this area and want to find the general instruction necessary just before jumping in to a bachelor college diploma program. Thx for the tips you actually provide in the blog.

  • I believe that avoiding ready-made foods would be the first step to lose weight. They will taste very good, but packaged foods have very little nutritional value, making you consume more in order to have enough power to get through the day. In case you are constantly eating these foods, changing to whole grain products and other complex carbohydrates will make you to have more strength while eating less. Interesting blog post.

  • Thanks , I’ve recently been looking for information about this subject for ages and yours is the greatest I have discovered till now. But, what about the bottom line? Are you sure about the source?

  • Hello, Neat post. There’s a problem together with your web site in internet explorer, might check this… IE nonetheless is the market chief and a big portion of people will pass over your excellent writing due to this problem.

  • Excellent items from you, man. I’ve take into account your stuff previous to and you are just extremely excellent. I actually like what you have received right here, certainly like what you are stating and the best way wherein you assert it. You are making it entertaining and you still take care of to keep it sensible. I can’t wait to learn far more from you. That is actually a terrific site.

  • Do you mind if I quote a few of your articles as long as I provide credit and sources back to your weblog? My website is in the exact same area of interest as yours and my visitors would genuinely benefit from a lot of the information you present here. Please let me know if this okay with you. Cheers!

  • I was curious if you ever thought of changing the page layout of your website? Its very well written; I love what youve got to say. But maybe you could a little more in the way of content so people could connect with it better. Youve got an awful lot of text for only having 1 or 2 pictures. Maybe you could space it out better?

  • Thanks for the tips shared on the blog. Another thing I would like to express is that weight-loss is not supposed to be about going on a celebrity diet and trying to get rid of as much weight as you can in a couple of weeks. The most effective way to lose weight is by acquiring it slowly and following some basic ideas which can allow you to make the most from a attempt to shed weight. You may be aware and already be following many of these tips, but reinforcing expertise never does any damage.

  • Thanks for the sensible critique. Me & my neighbor were just preparing to do a little research about this. We got a grab a book from our area library but I think I learned more from this post. I’m very glad to see such wonderful information being shared freely out there.

  • Once I originally commented I clicked the -Notify me when new comments are added- checkbox and now every time a comment is added I get four emails with the identical comment. Is there any way you may remove me from that service? Thanks!

  • Howdy would you mind letting me know which hosting company you’re utilizing? I’ve loaded your blog in 3 different internet browsers and I must say this blog loads a lot quicker then most. Can you suggest a good internet hosting provider at a honest price? Many thanks, I appreciate it!

  • Hello very cool website!! Man .. Excellent .. Amazing .. I will bookmark your site and take the feeds also…I am satisfied to find a lot of helpful info right here within the post, we need work out extra strategies in this regard, thanks for sharing.

  • Thanks for the sensible critique. Me & my neighbor were just preparing to do some research on this. We got a grab a book from our local library but I think I learned more clear from this post. I’m very glad to see such great information being shared freely out there.

  • I got what you mean , thankyou for putting up.Woh I am pleased to find this website through google. “Don’t be afraid of opposition. Remember, a kite rises against not with the wind.” by Hamilton Mabie.

  • It is really a nice and helpful piece of information. I’m glad that you shared this helpful information with us. Please keep us up to date like this. Thank you for sharing.

  • Hi, I think your site might be having browser compatibility issues. When I look at your blog in Ie, it looks fine but when opening in Internet Explorer, it has some overlapping. I just wanted to give you a quick heads up! Other then that, very good blog!

  • Hello very nice web site!! Man .. Beautiful .. Superb .. I’ll bookmark your site and take the feeds also¡KI am glad to search out so many useful info here within the put up, we want work out extra strategies in this regard, thank you for sharing. . . . . .

  • Woah! I’m really loving the template/theme of this website. It’s simple, yet effective. A lot of times it’s very difficult to get that “perfect balance” between user friendliness and visual appeal. I must say you have done a very good job with this. In addition, the blog loads extremely quick for me on Firefox. Outstanding Blog!

  • Excellent items from you, man. I’ve have in mind your stuff prior to and you are simply too great. I really like what you’ve received right here, certainly like what you are stating and the best way by which you say it. You are making it enjoyable and you still take care of to stay it sensible. I can not wait to learn much more from you. That is really a great site.

  • When I originally commented I clicked the “Notify me when new comments are added” checkbox and now each time a comment is added I get three emails with the same comment. Is there any way you can remove people from that service? Thanks a lot!

  • Appreciating the commitment you put into your blog and in depth information you offer. It’s great to come across a blog every once in a while that isn’t the same outdated rehashed information. Great read! I’ve bookmarked your site and I’m adding your RSS feeds to my Google account.

  • Excellent post. I was checking constantly this blog and I am impressed! Extremely helpful info specially the last part 🙂 I care for such info much. I was seeking this certain information for a very long time. Thank you and good luck.

  • Thanks for your entire labor on this site. Gloria loves working on research and it’s really easy to see why. We all learn all of the lively method you render helpful tactics via the web blog and even cause contribution from website visitors on this area plus our favorite child is without question studying a great deal. Enjoy the rest of the new year. You’re the one carrying out a first class job.

Comments are closed.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

    Disclaimer