One of the fundamental tenets of tort law is to compensate individuals injured through the negligent actions of others. The causal chain reaction of tort → accident → injury has been explained elsewhere (see “Causation”). It is also known that the wrongdoer must accept his or her victim with all of his or her vulnerabilities (see “The Vulnerable Victim: Thin Skull vs Crumbling Skull Cases”). However, why would a tortfeasor be liable for the harm resulting from the victim’s own actions? The answer may not be as straightforward as it may seem.
The cases dealing with this question tend to split in two categories: (1) where the victim’s own negligence is one of the causes of the accident; or (2) where the victim does not cause the accident but he or she contributes to his or her injuries through specific action or inaction. This paper is concerned with the second scenario. Although both fall under the generic of ‘contributory negligence’, the victim in the second case would not likely suffer but for the initial negligence. Thus, it is not a contribution to the original cause of an accident, but more towards its end result or the damages: Snushall v. Fulsang, (2005), 78 OR (3d) 142 paras 24-29 (ONCA); Jessome v. Walsh, 2003 NSCA 35 para 8; Hodder v. Waddleton (1993), 110 Nfld & PEIR 222 para 70 (NLSC).
A well-known illustration of the second scenario is the failure to wear a seatbelt. Being strapped in will prevent a motorist from becoming a projectile whenever there is a frontal collision or rolling over of the vehicle. While the seatbelt may protect other occupants against what the plaintiff in Francoeur v. Lavoie (1979), 26 NBR (2d) 111 para 11, described (i.e. “As the car swung about on impact the driver was thrown against her, crushing her against the door”), it will mostly keep the person wearing it from being “thrown forward with her head striking the windshield”. A wide scientific consensus has developed regarding the use of seatbelts, leading to specific legislative enactments.
Implicit in the question of the use of protective equipment is the weight of the science underlying it. How much scientific evidence is needed before the law will consider the victim of a tortfeasor contributory negligent for the failure to wear apparatus at his or her disposal? Again, the answer may not be as straightforward as one might think. Namely, regarding the use of helmets for motorcycle riders, an attempt was made to show, in R v. Fisher (1985), 37 Man R (2d) 81 (Man QB), just how dangerous they were. As for some science behind the design and certification of helmets, see Thomas v. Bell Helmets Inc., 1999 CanLII 9312 (ONCA); More v. Bauer Nike Hockey Inc., 2011 BCCA 419. However, as stated in MacDonald v. Alderson (1981), 8 Man R (2d) 202 para 67 (Man QB):
As a general principle, the conclusions reached by those engaged in the study of motorcycle safety are that safety helmets save the lives of and prevent head injuries to those cyclists involved in traffic accidents.
Of course, it inevitably depends on the nature, direction and force of the blow, as well as the type and quality of the helmet involved: Fraser v. Ortman (1980), 11 Alta LR (2d) 391 (Alta CA).
When one studies the implications of helmets in cases dealing with motorcycle and bicycle accidents, consideration must be given to the legislative requirement in place, to the type of injuries, as well as to the type of helmet. Just like seatbelts don’t save people in every situation, neither do helmets.
Legislation Dealing with Helmets
When determining whether the failure to use a helmet contributes to the magnitude of the injuries suffered, some courts have looked at the regulatory background. Some judges have expressed reluctance at substituting themselves to legislators in compelling population to wear such devices. Namely, in MacDonald, supra para 68, the trial judge explained that:
The subject matter of safety helmets for motorcyclists has been one that has been debated in the various legislatures here in Canada as well as in the United States. In Manitoba, for example, … there is no legislation at the present time that requires motorcycle drivers to wear protective helmets.
However, since then, the legislative context regarding crash helmets has considerably changed in Canada.
In New Brunswick, s. 229 of the Motor Vehicle Act, RSNB 1973, c. M-17, now requires every motorcyclist and their passengers to wear a certified helmet at all times:
- No person shall drive a motorcycle or ride thereon as a passenger unless he is wearing a helmet protection for his head which helmet conforms with the standards prescribed by regulation.
A similar requirement applies to cyclists, as per s. 177(3) of the same statute, plus a positive obligation on parents to ensure that children under the age of 16 comply:
- (3) No person shall ride on or operate a bicycle on a highway unless the person is wearing a bicycle helmet in accordance with the regulations and the chin strap of the helmet is securely fastened under the person’s chin.
(4) No parent or guardian of a person who is under sixteen years of age shall authorize or knowingly permit that person to ride on or operate a bicycle on a highway unless the person is wearing a helmet in accordance with subsection (3).
Riding a motorcycle or a bicycle without a helmet is an offence under the Act and subject to sanction.
The Off-Road Vehicle Act, SNB 1985, c. 0-1.5, s. 21, imposes a similar requirement for people riding on ATVs and snowmobiles:
- No person shall drive an off-road vehicle or be an occupant of such a vehicle unless he is properly wearing a helmet that complies with the standards prescribed by the regulations under the Motor Vehicle Act.
In Fisher, supra para 12, on appeal from a Provincial Court, a Justice of the Queen’s Bench of Manitoba stated that:
The provision requiring the wearing of a helmet is an integral part of a broad legislative scheme to promote highway safety and to minimize the over-all human and economic cost of accidents.
Similar to seatbelts, the scientific consensus around helmets recognizes their usefulness in preventing or reducing the magnitude of head injuries. But that did not stop the British Columbia Human Right Commission from holding such a requirement discriminatory against devout Sikh men wearing turbans: Dhillon v. B.C. Ministry of Transportation and Highways, 1999 BCHRT 25.
Liability for Failure to Wear Helmets
Like all other scenarios of contributory negligence, it is on the party seeking to rely on it to prove it. The allegation is not limited to the failure to wear helmets; it is also directed at wearing inadequate equipment. Regarding the inadequacy of a helmet, Justice Lowry stated, in Turner v. Brydon 1992 CanLII 267 para 22 (BCSC), before rejecting a claim of contributory negligence:
To establish contributory negligence on the part of a motorcyclist injured in a motor vehicle accident, based solely on the allegation of a defective helmet, it is, in my view, essential to establish first that the cyclist knew or ought to have known that the helmet being worn could prove to be less effective than might reasonably have been expected, and then, that the injury would not have been suffered, or would have been reduced, if a better helmet had been worn.
At this time, there are only a few known cases that have accepted to apply contributory negligence to the failure to wear a helmet.
In Squires v. Pender, 2019 NLSC 101 paras 134-148 & 203-209, two teenage girls were injured while riding a borrowed ATV in a quarry when it collided head-on with a piece of machinery. They both had been offered a helmet, which they refused to wear. They both sustained head injuries. In a lengthy decision, after considering the types of injuries suffered and the effect a helmet might have had on their severity, the trial judge held one contributory negligent at 10% and the other at 20%. It is consistent with what was decided by the U.K. Court of Appeal, in O’Connell v. Jackson,  3 All E.R. 129, and the Supreme Court of British Columbia in Nitano v. ICBC,  BCJ No 913, where awards of damages were reduced by 15% for the failure to wear a helmet. In yet other cases, contributory negligence was simply agreed to at 10 or 15% by the plaintiffs: Lum v. McLintock (1997), 45 BCLR (3d) 303 para 2 (BCSC); Slaunwhile v. Little (1998), 172 NSR (2d) 141 para 3 (NSSC). The case of Shaw v. Storey (1991), 53 BCLR (2d) 257 (BCCA), offers little insight as the helmet was but one of the many elements at play.
Many other cases have dismissed the claim of contributory negligence for the failure to wear a helmet or wearing an inadequate helmet: Hildebrand v. Szalai (1979), 1 Man R (2d) 438 pp 442-443 (Man CA); Fraser, supra para 12; MacDonald, supra paras 67-76, upheld unanimously on that issue at (1982), 15 Man R (2d) 35 (Man CA); Vardabasso v. Sundholm-Millar, 1994 CanLII 1455 (BCSC); Labanowicz v. Fort Erie (Town), 2018 ONCA 343 paras 19-20. An argument of contributory negligence, even in the absence of a head injury, was also dismissed in St. Marthe v. O’Connor, 2019 ONSC 1585 paras 119-121. Thus, there is no automatic finding of negligence where a motorcyclist is injured while not wearing head gear; contrary to seatbelts, New Brunswick has yet to enact legislation to apply a reduction in the damages as a result of not wearing a helmet.
This paper is offered for the purpose of discussion only. It does not constitute legal advice and its distribution does not create a solicitor-client relationship. Please consult a lawyer if you require legal advice.