Personal Injury Case Winning appeal

The ICBC personal injury appellant was sitting in the back of a vehicle when it overturned at high speed along with other teenage passengers. The teenagers were drinking alcohol in the back of the car and planning to throw eggs at pedestrians .  After the car crash the appellant made no complaints of headaches, neck and back pain or anxiety to the ICBC adjuster and no complaints were made to doctors.

The trial judge found that the appellant failed to prove that the car accident caused anxiety, headaches, and neck and back pain, and assessed damages at $8,500 to compensate her for a laceration and scarring to her leg, bruises, scrapes and cuts.

The Court went on the determine that the claimant contributed to her loss to the extent of 40% and accordingly reduced the compensation to an award of $5,100.  The appellant successfully appealed this finding of fault and these are those reasons.

 In Bradley v. Bath, 2010 BCCA 10, Tysoe J.A. adopted the following description of contributory negligence:

[25]      The concept of contributory negligence was described in John G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998) at 302, as follows:

            Contributory negligence is a plaintiff’s failure to meet the standard of care to which he is required to conform for his own protection and which is a legally contributing cause, together with the defendant’s default, in bringing about his injury…

The analysis for contributory negligence involves two considerations: (1) whether the claimant failed to take reasonable care in her own interests; and (2) if so, whether that failure was causally connected to the loss she sustained.

The problem with the judge’s reasoning is that he did not articulate the nature of the risk involved. The seatbelt defence failed on causation; there was no evidence that alcohol caused the accident; no evidence that the overcrowding interfered with the operation of the vehicle or otherwise contributed to her injuries; no evidence that egg throwing interfered with the operation of the vehicle. So none of the factors the judge considered, individually or cumulatively, caused the claimant’s losses, which resulted from speeding and losing control.

The Court of Appeal found these risks too vague a basis on which to find the claimant contributorily negligent. As the court states at paragraph 20:

  Life is full of risks, more so perhaps for young people, which society accepts by granting driver’s licences to 16-year-old persons.  Accepting a ride with friends in high spirits out on a lark is not an inherently and unacceptably dangerous activity.

When the proximate and causative agents were considered here, it was difficult to find any ground for attribution of blame to the claimant.  Accordingly, the appeal was allowed on the finding of contributory negligence and substitute an award of $8,500.(Wormald v. Chiarot,2016 BCCA 415)

Posted by ICBC Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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