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Tag: Mosimann v. Guliker

Failing to Wear Seatbelt Results in Increased Injuries and Decreased Damages

Adding to this site’s archived cases addressing damages when a Plaintiff fails to wear a seatbelt, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, reducing a Plaintiff’s damages by 25% due to not wearing a seatbelt.
In this week’s case (Mosimann v. Guliker) the Plaintiff was involved in three collisions.  She was not at fault for any of them.  She suffered chronic injuries as a result of these crashes.  In one of the collisions she was not wearing a seat belt and her face hit the dashboard.  Although the Plaintiff hired an expert who testified that this did not contribute to her injuries Mr. Justice McEwan rejected this evidence and reduced the Plaintiff’s damages by 25%.  In reaching this conclusion the Court provided the following reasons:
[28]         Although Dr. Whetter was somehow under the impression that the plaintiff was wearing a seatbelt, it is clear that that was not the case. According to Craig Lukar, a professional engineer who gave an opinion to the court, however, the plaintiff would have suffered her facial injuries in any event, that is, even she had been wearing seatbelt.
[29]         Mr. Lukar’s analysis proceeded by using an exemplar vehicle (the one involved In the accident was no longer available) and placing the plaintiff in the passenger seat, demonstrating her position. It appears to be critical to the analysis that the plaintiff is short and the seat is too long for her to sit with her bottom all the way to the seatback without extending her legs. That is not evident in the third of the photos put in evidence, where the plaintiff appears to be seated comfortably back in the seat. Mr. Lukar suggests that the photograph is deceiving in that regard. The sixth photo shows the plaintiff apparently striking a part of the console, but from a position well advanced from the back of the seat. The dashboard in front of the passenger’s seat is significantly farther away than an instrument panel to the left of the seat, which is what Mr. Lukar suggests the plaintiff struck.
[30]         What the photographs did appear to show was that if the plaintiff was sitting with a properly adjusted lap belt, even allowing for some stretching or body compression that would allow the plaintiff to move forward, the arc of her upper body would fall short of hitting the dashboard. In making this observation, I am not substituting my own interpretation of the evidence for that of Mr. Lukar. I am simply saying that despite his qualifications, Mr. Lukar was not able to satisfy me that what he described displaced the inference the court might have drawn without assistance. His suggestions were simply unconvincing.
[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%.