If you are injured in a motor vehicle accident that was not your fault, ICBC cannot outright deny your claim for not wearing your seatbelt, but ICBC can argue that you were contributorily negligent by relying on a seatbelt defence.

Contributory negligence is a legal defence that ICBC uses to reduce an injured claimant’s compensation. The argument behind contributory negligence is that the injured claimant failed to take reasonable care for his/her own safety and that this contributed to the injuries suffered in a motor vehicle accident. In other words, the underlying argument behind contributory negligence is that the injured claimant contributed to his/her own injuries and, therefore, he/she is partly to blame.

If ICBC is successful in arguing contributory negligence, then fault is apportioned (allocated) between the at fault driver and the injured claimant and the amount of blame allocated against an injured claimant will then reduce the amount of his/her compensation from ICBC. For example, if the injured claimant is found 50% at fault for failing to take reasonable care for his/her own safety, then compensation is reduced by 50%.

If an injured claimant is found not to have been wearing a seatbelt at the time of the motor vehicle accident, a finding of contributory negligence and reduction in compensation is not automatic. In order to rely on a seatbelt defence, ICBC must prove on the balance of probabilities that:

  1. the injured claimant failed to wear a seatbelt when the motor vehicle accident occurred;
  2. the seatbelt was available and in working order at that time; and
  3. the injured claimant’s injuries would have been prevented or lessened had a seatbelt been worn.

ICBC will sometimes hire an engineer to provide expert evidence to prove that an injured claimant’s injuries would have been prevented or lessened had he/she worn a seatbelt. Expert evidence is not required, however, in all cases where the seatbelt defence is argued. The courts have stated in numerous decisions that a common sense approach can also be taken in the absence of expert evidence where it is obvious that a seatbelt could have prevented or reduced the severity of the injuries (Mossiman v. Guliker 2014 BCSC 492).

If ICBC is successful in proving the seatbelt defence, case law has established that an injured claimant will be found between 10-25% contributorily negligent.

A recent case where the injured claimant was found 25% contributorily negligent for failing to wear a seatbelt was analyzed in a previous blog post.

Leave a Reply

Your email address will not be published. Required fields are marked *

Post comment