Tag: seatbelt

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:

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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%.
 

$50,000 Non-Pecuniary Damages For Concussive Injury With Serious Forehead Laceration

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a concussive injury sustained in a motor vehicle collision.
In last week’s case (Abdalle v. British Columbia (Public Safety and Solicitor General)) the Plaintiff was injured in a 2007 intersection collision.  The force of impact propelled the Plaintiff into his vehicle’s windshield resulting in a concussive injury, significant scarring and various soft tissue injuries.
The injuries largely improved in the following years but the Plaintiff was left with some residual symptoms in addition to his forehead scar.  Madam Justice Ross assessed non-pecuniary damages at $50,000 (although this figure was then reduced to $27,500 for the Plaintiff’s failure to wear a seatbelt and further for his failure to mitigate his damages).  In arriving at this figure the Court provided the following reasons:

[92] In this case I have concluded as noted above that Mr. Abdalle suffered a serious laceration, concussion and soft tissue injury to his neck and back in the accident. He was left with a significant scar on his forehead. He suffered from nausea, dizziness, headache pain and stiffness in his neck and back as a result of his injuries. He was significantly disabled and largely bedridden from the time of the accident until September 2007, when he was able to return to work. He was not able to attend to functions of daily living such as cooking and household chores at this time and was unable to engage in the many activities that he had enjoyed before the accident. His sleep and mood were affected.

[93] With the passage of time his symptoms improved. As he conceded in his examination for discovery, the dizziness was essentially resolved after a year. By October 2009 he was experiencing headaches perhaps twice a month and flare ups of neck pain every couple of months. I accept that he continues to experience periodic flare ups of neck and back pain and headache.

[94] He was able to return to work in September 2007 and has been able to function at the workplace since that time. While he has not returned to his pre-accident level of activity, I find that the injuries he suffered in the accident do not and will not prevent him from taking part in any vocational or recreational activities. Upon a review of the cases cited by counsel and having regard to my findings concerning Mr. Abdalle’s injuries and their impact on his activities and the quality of his life, I assess non-pecuniary damages prior to reduction for mitigation and contributory fault at $50,000.

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%.

Keeping Damaging Evidence Out; Bias and Necessity


An imporant skill of a trial lawyer is being able to persuade the Court, in appropriate circumstances, to exclude expert opinion evidence that is damaging to your client’s case.  Two of the many objections that can be raised against opposing expert evidence are bias and lack of necessity.   Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with these areas of the law.
In today’s case (Beazley v. Suzuki Motor Corporation) the Plaintiff was injured in a 1994 roll-over car crash.  The Plaintiff claimed that the design of the vehicle involved was defective and sued various parties including GMC.  GMC argued that the vehicle was not negligently designed and further that the Plaintiff was the author of her own misfortune for failing to wear her seatbelt.
In support of their case the Defendants obtained two expert reports.  The first was a report from an engineer (who was an employee of the Defendant GMC) who provided opinions about the handling, stability and rollover characteristics of the vehicle in question and whether the vehicle was defective.  The second was the report of a statistician who addressed the injury risk to belted and unbelted occupants in rollover accidents.
The Plaintiff applied to exclude these reports from evidence.  They argued that the engineer’s employment relationship with the Defendant at the very least created a reasonable apprehension of bias that should disqualify him from acting as an expert.  With respect to the statistician’s report the Plaintiffs argued that this evidence was not helpful for the Court.
Mr. Justice Goepel rejected the Plaintiff’s submissions with respect to bias but did agree with the submissions with respect to the statistical evidence.  In coming to these conclusions Mr. Justice Goepel provided the following useful summaries of these areas of law:

  • BIAS

[20] Canadian courts appear to have taken different positions on the issue of whether an expert witness’ bias or perceived bias will disqualify him or her from giving evidence at trial. Some courts have held that for expert evidence to be admissible, the expert must be seen to be absolutely neutral and objective. Other courts have concluded that a lack of objectivity, neutrality and independence are matters that only impact the weight to be afforded that expert. Romilly J. in United City Properties Ltd. v. Tong, 2010 BCSC 111 at paras. 35-68, has exhaustively reviewed the jurisprudence.

[21] The cases are not easily reconciled. Where there is a personal relationship between the proposed expert and the party, where the expert has been personally involved in the subject matter of the litigation or where the expert has a personal interest in the outcome, the expert has not been allowed to testify. Examples of such cases are Fellowes, McNeil v. Kansa General International Insurance Co. (1998), 40 O.R. (3d) 456 (Gen. Div.); Royal Trust Corporation of Canada v. Fisherman (2000), 49 O.R. (3d) 187 (Sup. Ct. J.);  Bank of Montreal v. Citak, [2001] O.J. No. 1096 (Sup. Ct. J.); and Kirby Lowbed Services Ltd. v. Bank of Nova Scotia, 2003 BCSC 617. In cases where the relationship between the expert and the party is more institutional in nature, the evidence has been admitted subject to weight. Examples of such cases are R. v. Klassen, 2003 MBQB 253 and R. v. Inco Ltd.(2006), 80 O.R. (3d) 594 (Sup. Ct. J.).

  • NECESSITY

[28] Expert opinion evidence is admissible only where a judge or jury are unable, due to the technical nature of the facts, to draw appropriate inferences. The defendants seek to call Ms. Padmanapan’s statistical evidence in order to establish a causal connection between a failure to wear a seatbelt in the course of a rollover accident and increased injuries. In certain circumstances statistical evidence can be helpful in determining causation:  Laferrière v. Lawson, [1991] 1 S. C.R. 541.

[29] It has been long recognized in British Columbia that a party who fails to use an available seatbelt and sustains injuries more severe than if the seatbelt had been worn will be found to be contributory negligent: Yuan et al. v. Farstad (1967), 66 D.L.R. (2d) 295 (B.C.S.C.); Gagnon v. Beaulieu, [1977] 1 W.W.R. 702 (B.C.S.C.).

[30] While there appears to have been statistical evidence led in Yuan and in Gagnon, subsequent cases have held that such evidence is not necessary. In Lakhani (Guardian ad litem of) v. Samson, [1982] B.C.J. No. 397 (S.C.) McEachern C.J.S.C. (as he then was) noted 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.

[31] To succeed on the seatbelt defence, the onus will be on the defendants to establish upon a balance of probabilities that the use of a functioning seatbelt would have avoided, or minimized Ms. Spehar’s injuries:  Harrison v. Brown, [1987] 1 W.W.R. 212 (B.C.S.C.); Terracciano (Guardian ad litem of) v. Etheridge (1997), 33 B.C.L.R. (3d) 328 (S.C.).

[32] The statistical evidence to be led from Ms. Padmanapan is, in my opinion, not necessary and will not assist me as trier of fact in determining the issue of contributory negligence. If the evidence is not necessary, it does not meet the test of admissibility.

Buckle Up Or Pay the Price

Failing to wear a seatbelt can not only hurt you physically, it can hurt financially and I’m not referring to a traffic ticket.
A person advancing an ICBC claim who is injured through the fault of another motorist may be found “contributorily negligent” for failing to wear a seatbelt if it can be proven that injuries would have been prevented (or lessened) by the use of a seatbelt.
If a person advancing an ICBC claim is found contributorily negligent, the value of the ICBC claim goes down.
In these cases BC courts must apportion those injuries due to the failure to wear a seatbelt and deduct their value in compensating the injured person. Generally failing to wear a seatbelt results in reduction of the value of the claim by 15% – 25%, although the range of apportionment varies and can exceed this range.
When dealing with ICBC, it is important to keep in mind that failing to wear a seatbelt does not automatically reduce the value of the claim. It is for ICBC (or the insurance company / lawyer for the at fault driver) to prove that failure to wear a seatbelt caused or contributed to the injuries. Justice Fulton, the case Gagnon v. Beauliew, summarized the law as follows “In the case of this particular form of contributory negligence, the onus is on the defendant to satisfy the court, in accordance with the usual standard of proof, not only that the seat belt was not worn but also that the injuries would have been prevented or lessened if the seatbelt had been worn”
Also, there are some limited circumstances where failing to wear a seatbelt does not amount to negligence such as when a person has medical reasons making wearing a seatbelt unreasonable.
Circumstances excusing people from wearing seatbelts are the exception, not the norm so consider buckling up, failing to do so can not only add to your injuries, it can subtract from your pocket-book.

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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.

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