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 (see “Implications of Not Wearing Helmets in Motorcycle Accident”).
A well-known illustration of the second scenario is the failure to wear a seatbelt. Implicit in the question of the use of protective equipment is the weight of the science underlying it. How much 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. See Holohan v. Dunfield (1982), 133 DLR (3d) 267 paras 42-49 (NBQB). Regarding seatbelts and the scientific evidence, the jurisprudence developed rules in relation thereof well before they became mandatory. In Brun v. Bourque (1980), 32 NBR (2d) 45 (CA), a split decision, the usefulness of seatbelts was considered by the appeal justices. Chief Justice Hughes summarized the dynamic of frontal collisions as follows, which is not the basis of any disagreement (para 23):
It is obvious that when one vehicle collides with another the forward motion of the vehicle may cease almost instantaneously but in any event will cease during the brief period in which the front end of the vehicle crumples against the vehicle with which it collides. The occupants, of course, continue forward at the same speed the vehicle has been travelling and will almost invariably be hurled forward and if seated in the front seat will in many cases be thrown against the instrument panel, the windshield or both unless restrained by a seat and shoulder belt.
In this respect, a wide scientific consensus has developed regarding the use of seatbelts. 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”. On the other hand, it is generally held that seatbelts have limited efficacy in rear-end collisions: Mallet v. Caissie (1985), 67 NBR (2d) 185 para 28 (QB); Kennedy v. Hyland (1987), 79 NBR (2d) 153 para. 8 (QB).
At common law, the failure to wear a seatbelt did not lead to an automatic finding of contributory negligence. In Heppell v. Irving Oil Co. Ltd (1973), 6 NBR (2d) 327 paras 7-8, the unanimous New Brunswick Court of Appeal explained that:
The failure to use an available seat belt is not of itself to be regarded as contributory negligence.
In order to support a finding of contributory negligence in failing to use an available seat belt there must be evidence to establish a causal connection between the failure and the injuries sustained.
It was on a defendant to show that (1) the seatbelt was not worn, and (2) this failure contributed to the injuries. Therefore, a nexus between the seatbelt and the injury remained to be proven. However, the law has changed since that decision.
Legislation Dealing with Seatbelts
When determining the issue of contributory negligence for failure to wear a seatbelt, judges will typically look at the regulatory regime in place. Nowadays, most provinces have a statutory obligation for occupants of automobiles to wear a seatbelt. In New Brunswick, the requirement is set at s. 200.1 of the Motor Vehicle Act, RSNB 1973, c. M-17. In addition to prohibiting the alteration of such devices, it provides that:
200.1 (1) In this section
“properly adjusted”, with reference to a seat belt assembly designed to be worn over the upper torso, means worn snugly across the top of the shoulder and diagonally across the chest with no limb, other object or other material coming between the assembly and the body other than clothing or a sling or other medical aid recommended by a medical practitioner;
“seat belt assembly” means a device or assembly composed of straps, webbing or similar material that restrains the movement of a person in order to prevent or mitigate injury to the person and includes a pelvic restraint or an upper torso restraint or both of them.
(3) Every person who drives on a highway a motor vehicle in which a seat belt assembly is provided for the driver shall wear the complete seat belt assembly in a properly adjusted and securely fastened manner.
(4) Every person who is at least sixteen years old and who is a passenger in a motor vehicle being driven on a highway shall
(a) occupy a seating position for which a seat belt assembly is provided, and
(b) wear the complete seat belt assembly in a properly adjusted and securely fastened manner.
(6) No person shall drive on a highway a motor vehicle in which there is a passenger under the age of sixteen years unless
(a) that passenger occupies a seating position for which a seat belt assembly has been provided and is wearing the complete seat belt assembly in a properly adjusted and secure fashion, or
(b) that passenger occupies and is properly secured in a child seating and restraint system prescribed by regulation.
A few exceptions are defined in ss. 200.1(5) and (7) but wearing a seatbelt is otherwise mandatory since 1983. According to s. 347, failure to do so is a Category ‘C’ offence under the Provincial Offences Procedure Act, SNB 1987, c. P-22.1. It may lead to sanctions in the form of fines and 2 demerit points for the driver (Motor Vehicle Act, supra s. 297(2)(i.1)).
Occupants of other types of vehicles are also required to wear seatbelts. More specifically, in New Brunswick, since 2020, the Off-Road Vehicle Act, SNB 1985, c. O-1.5, provides that:
22.2 (1) No person shall drive an off-road vehicle unless
(a) the person is wearing a seat belt, if the person is occupying a seat in which a seat belt is provided for, and
(b) any occupant who is under 16 years of age is wearing a seat belt, if the occupant is occupying a seat in which a seat belt is provided for.
(2) No person who is 16 years of age or older shall be an occupant in an off-road vehicle unless the person is wearing a seat belt, if the person is occupying a seat in which a seat belt is provided for.
According to s. 29, failure to wear a seatbelt is a Category ‘C’ offence under the Provincial Offence Procedure Act, supra.
Now that there are general requirements to wear seatbelts in vehicles that are equipped with such devices, tort law is likely to become more assertive on the issue. However, there is still a need to consider the role that a seatbelt plays in each case.
Liability for Failure to Wear Seatbelts
Where the failure to wear seatbelts had an effect on the type or extent of the injuries, courts assessed each case individually to determine such effect. The ultimate result varied accordingly. Namely, the awards were reduced of:
- 10% in Chamberlain v. Robichaud (1985), 62 NBR (2d) 73 (QB), and Sprague v. Larocque (1987), 75 NBR (2d) 357 (CA);
- 15% in Brun v. Bourque, supra, Poirier v. Bourque (1992), 128 NBR (2d) 296 (QB), and Dunnett v. Mills, 2004 NBQB 136;
- 20% in Lorette v. McAllister (1990), 112 NBR (2d) 159 (QB), and Chevarie v. Williston, 1997 CanLII 9612 (QB);
- 25% in Valley v. Valley (1986), 69 NBR (2d) 260 (QB);
- 3% in Donovan v. Stirling (1986), 72 NBR (2d) 104 (QB); or
- 40% in Smith v. Moore (1984), 59 NBR (2d) 123 (QB).
In Grass v. Richards (1982), 42 NBR (2d) 91 (QB), a 25% reduction was applied but only for an elbow injury, not a whiplash.
Regarding motor vehicle occupants, the New Brunswick Legislature went a step further in 1996. Not only is the seatbelt mandatory, but failure to wear it will lead to a reduction in the award of damages to victims, unless it can be shown that it would have made no difference. The Insurance Act, RSNB 1973, c. I-12, was then amended to provide for the following:
265.2 (1) Where a person who is required by section 200.1 of the Motor Vehicle Act to be wearing a seat belt assembly sustains bodily injury or dies in an accident while the person is not wearing a seat belt assembly, the amount recoverable by the person, or his or her personal representative, as damages for bodily injury or death in an action arising out of the accident shall be reduced by twenty-five per cent, unless the person or his or her personal representative, as the case may be, establishes that the failure to wear a seat belt assembly did not contribute to the bodily injury or death.
(2) Where a person to whom subsection (1) applies contributed to his or her bodily injury or death by other acts or omissions in addition to the failure to wear a seat belt assembly, and the person or his or her personal representative does not establish that the failure to wear a seat belt assembly did not contribute to the bodily injury or death, the reduction in the amount of damages shall be determined with regard to all the circumstances but shall not be less than twenty-five per cent.
(3) Subsection (1) does not apply to a person who sustains bodily injury or dies in an accident while the person is wearing a seat belt assembly but is not wearing it in a properly adjusted and securely fastened manner as required under section 200.1 of the Motor Vehicle Act.
(4) This section applies only to accidents occurring on or after the commencement of this section.
Like all other scenarios of contributory negligence, it is on the party seeking to invoke a failure to wear a seatbelt to prove it. However, once a defendant shows that a seatbelt was not being worn, the provision has shifted on the plaintiff the burden to establish that the failure did not contribute to the injuries. On this point, it should first be noted that the statutory requirement was not intended as a death trap. If a plaintiff is involved in an accident, s/he is entitled to unbuckle the seatbelt in order to get out of the vehicle. There is no contributory negligence if a subsequent collision occurs. As explained by Justice McNally, in Wood v. Zhao et al., 2019 NBQB 125 para. 57:
Mr. Godin also pleads that Ms. Wood was contributorily negligent for removing her seatbelt while her vehicle was still running and on the roadway. I have some difficulty with the proposition that a person in the process of checking on passengers or attempting to extricate themselves from a motor vehicle involved in an accident while their vehicle is stopped on the highway would be held contributory negligent for attempting to do so.
The previously quoted provision requires a reduction of 25% in the award of damages when there is a failure to wear the seatbelt: O’Neill Jones v. Chabot, 2015 NBQB 143. The percentage is not a matter of judicial discretion. The calculation is performed after the interests on the special damages have been determined: Burke Estate v. Royal & Sunalliance Insurance Co. of Canada, 2020 NBQB 74 paras 130-132. Where the plaintiff shows that the failure to wear the seatbelt did not contribute to the damages, then the court does not apply any reduction. Thus, in light of s. 265.2, there are now only two possible scenarios: 0% or 25% reduction (absent other contributory factors).
Many cases have dismissed the claim of contributory negligence for the failure to wear a seatbelt before the 1995 statutory enactment: Heppell, supra; Gajowiak Estate v. Blakney (1978), 21 NBR (2d) 100 paras 38-41 (QB); Doiron v. Brideau (1979), 28 NBR (2d) 520 (CA); Mabey v. Richards (1982), 42 NBR (2d) 91 para. 82 (QB); Holohan v. Dunfield, supra; Perron v. Parisé (1983), 44 NBR (2d) 409 (QB); Mallet v. Caissie, supra; Kennedy v. Hyland, supra; LeBreton v. Patriacca (1992), 128 NBR (2d) 190 (QB); Scott v. Renton (1999), 215 NBR (2d) 263 (CA); Guignard v. Hall, 2013 NBQB 7 paras 61-83, confirmed on appeal at 2016 NBCA 38. The same kind of consideration will continue to prevail under s. 265.2 of the Insurance Act, supra. The determination is entirely factual and there needs to be some evidence presented in support of the proposition that the injury would have resulted even with a seatbelt.
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.