March 25, 2014

Kevin Gourlay

An otherwise blameless plaintiff injured in an accident can be found contributorily negligent for failing to wear a seatbelt.  However, the burden rests with the defendant to establish a seatbelt defence.  As stated by Madam Justice Hyslop in Schenker v. Scott, 2013 BCSC 599, to establish a seatbelt defence a defendant must prove on a balance of probabilities:

a)    the plaintiff failed to wear a seatbelt;

b)    a seatbelt was available and in working order in the motor vehicle; and

c)     the plaintiff’s injuries would have been prevented or lessened had she been wearing a seatbelt.

At para. 207 of Schenker, Justice Hyslop reviews these principles and the case law in more detail, adding that the evidence must show that the actual injury or injuries sustained by the plaintiff would have been less had the plaintiff been wearing a seatbelt.

The Court released reasons today in Mosimann v. Guliker2014 BCSC 492, where this analysis was turned on its head.  The plaintiff was involved in a head-on collision when the large truck she was riding in hit a small vehicle.  The driver of the other vehicle was killed.  The plaintiff suffered superficial injuries as a result of striking her face on the dashboard, as well as soft tissue injuries to her neck and back from the impact.  However, her primary injuries were psychiatric.  The Court describes her as having “suffered significant emotional injuries which are integrated with the less serious pain and suffering arising from her physical injuries in such a way as to amplify their effect.”

Analysis of the seatbelt defence begins at para. 28.  Despite an absence of engineering evidence called by the defendant, the plaintiff called a professional engineer to establish that the plaintiff would have suffered her facial injuries even if she had been wearing a seatbelt.  The Court was unimpressed by the engineer’s evidence, noting that “his suggestions were simply unconvincing.”

The Court cited Chief Justice McEachern’s decision in Lakhani v. Samson, 1982 CarswellBC 2262, for the proposition that engineering evidence is not required and that the court can use common sense.  Rejecting the expert evidence, the Court reduced the plaintiff’s damages by 25%:

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%.

The Court was entitled to reject the engineer’s evidence and apply common sense to find that a seatbelt would have prevented the plaintiff’s superficial facial injuries.  However, the case was really about the psychiatric injuries the plaintiff suffered from this fatal car accident.  It is hard to see how the plaintiff’s psychiatric injuries could have been impacted by the lack of a seatbelt. To reduce the plaintiff’s damages by 25% when those damages primarily relate to injuries unrelated to the lack of a seatbelt appears draconian.  Respectfully, it also appears to arise from an error in failing to ask whether the defendants demonstrated that the plaintiff’s actual injuries would have been less had the plaintiff been wearing a seatbelt.



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