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Failure to wear a seatbelt hurt the ICBC claim?

Does failure to wear a seatbelt hurt the ICBC claim?

By Subreen Bedi – MacLean Personal Injury Lawyer

Have you or someone you know been injured in a Vancouver ICBC car accident? Our top Vancouver ICBC car accident claim and personal injury lawyers can help you get the maximum compensation you deserve – even if you fail to wear a seatbelt and hurt the ICBC claim.

MacLean Personal Injury offers focused and aggressive help from our ICBC injury lawyers to make sure you get the most money you are entitled to.

Call Subreen Bedi now at 604-602-9000. You can also call us at any of our 4 offices across BC including Surrey, Vancouver, Kelowna and Fort St John at 1.877.602.9900 or click here to get a FREE appointment to discuss your case.

Wear those seatbelts! Not only will buckling up assist you in preventing certain injuries, but you should keep in mind that the failure to wear a seatbelt can hurt the ICBC claim.

A plaintiff in Vancouver recently found out that an ICBC claim can be reduced if the plaintiff is found to be “contributorily negligent” because they fail to wear a seatbelt. Contributory negligence applies if it can be shown that the injuries would have either been less severe or prevented altogether had the plaintiff been wearing a seatbelt.

If a plaintiff is found to be contributorily negligent due to the failure of wearing a seatbelt, the value of the claim can generally be reduced by 10% to 25%.

In 2011, the Supreme Court of British Columbia heard the matter of Ms. Gilbert, who suffered a traumatic brain injury, a fractured clavicle, and soft tissue injuries as a result of a single motor-vehicle accident, where the driver of the vehicle was impaired and had lost control of the vehicle (Gilbert v. Bottle 2011 BSCS 1389). Mr. Bottle was the driver of the vehicle. The vehicle was owned by Mr. Whitford. Ultimately, the court assessed global damages at $836,000 for injuries and loss sustained by Ms. Gilbert as a result of the accident.

While ICBC admitted liability on the part of Mr. Bottle, and vicarious liability on the part of Mr. Whitford, ICBC argued that Ms. Gilbert was contributorily negligent because she failed to care for her safety by getting into the vehicle driven by an obviously impaired driver and further, for failing to wear her seatbelt. ICBC disputed the extent of Ms. Gilbert’s injuries and the quantum of her claims for damages. ICBC also claimed that Ms. Gilbert failed to mitigate her loss.

The issues for determination were:

a) Did Ms. Gilbert contribute negligently to her own injuries by getting into the vehicle driven by Mr. Bottle and sitting in a position not equipped with a seatbelt? If so, to what extent?

b) What was Ms. Gilbert’s physical, mental and emotional condition and level of function before and after the accident, and why?

c) What is Ms. Gilbert’s future prognosis?

d) Did Ms. Gilbert fail to mitigate her loss by not undertaking reasonable forms of rehabilitation?

e) What quantum of damages should be awarded to Ms. Gilbert?

Upon reviewing the law pertaining to contributory negligence, the Honourable Madam Justice Dickson found that Ms. Gilbert did not contribute negligently to her own injuries by riding with Mr. Bottle, who was impaired at the time of the accident. The court declined to find that Mr. Bottle was obviously impaired, or that Ms. Gilbert knew of his intoxication. Madam Justice Dickson further declined to find that Ms. Gilbert should have made inquiries into Mr. Bottle’s level of sobriety before accepting a ride with him into Williams Lake.

With respect to the seatbelt issue, Madam Justice Dickson was not satisfied that any of Ms. Gilbert’s injuries were probably caused by her ejection or would probably have been avoided had she been wearing a seatbelt. In discussing this issue, Madam Justice Dickson made the following remarks:

[54] In a perfect world Ms. Gilbert would have noticed the baby seat and checked the availability of seatbelts in the backseat before she got into the Capri. It was dark outside, however, and I do not consider her failure in this regard to amount to a want of reasonable care for her own safety. In any event, even if she had done so, moved the baby seat and used the now available seatbelt there is no evidence that it was operating properly and I have not found her injuries would have been reduced by seat belt usage.

[55] If I am wrong and Ms. Gilbert failed to take reasonable care for her own safety either by failing to determine Mr. Bottle’s state of sobriety or assuming a position in the vehicle unequipped with an available seatbelt I would have found her comparative degree of fault was minimal. Mr. Bottle drove in a criminally dangerous manner, while intoxicated, and thus departed dramatically from the relevant standard of care. Ms. Gilbert, on the other hand, failed to elicit information that would have protected her from the terrible risk created by Mr. Bottle’s serious driving misconduct. In these circumstances, at most I would have assessed her contributory negligence at 5%.

Madam Justice Dickson concluded “Ms. Gilbert suffered a complicated mild traumatic brain injury with significant and permanent sequelae as a result of the accident…” Non-pecuniary damages were assessed at $200,000.

Damages resulting from past income loss of earning capacity were assessed at $36,000, which is the amount the court found that Ms. Gilbert could have earned during the years immediately following the accident, up to and including trial.

In assessing loss of future earning capacity at $400,000, Madam Justice Dickson made the following findings:

[200] Ms. Gilbert is and will probably remain competitively unemployable due to the effects of her traumatic brain injury. Although her post-accident functional change is more substantial than Dr. Travalos assumed, I accept his view that her injuries tipped her over the edge in a vocational sense. I also accept that Ms. Gilbert’s quality of life may improve with appropriate support and treatment. I am satisfied, however, that, even with support, she will probably never work for pay again.

In reaching the conclusion that $400,000 is appropriate for loss of future earning capacity, Madam Justice Dickson considered the risk that Ms. Gilbert might have continued her substance abuse habits and low earning pattern. Madam Justice Dickson also allowed for the contingency that Ms. Gibson’s health might improve somewhat with treatment and that some form of employment might become available to her in the future.

Finally, Madam Justice Dickson assessed cost of future care at $200,000, finding that the following treatments would benefit Ms. Gilbert:

  1. Drug and alcohol treatment;
  2. Multidisciplinary pain clinic;
  3. Residential brain injury rehabilitation program;
  4. Medications and supplies;
  5. Ongoing provision of therapies and health maintenance; and
  6. Rehabilitation supplies.

While failure to wear a seatbelt can definitely reduce the amount of money damages you receive, it does not completely eliminate or defeat your claim. If you have been injured in car accident in Vancouver, or anywhere else in British Columbia, we can assist you with your ICBC claim. We will ensure that you get the maximum amount of money from ICBC that you are entitled to receive.

Please feel free to call me, Subreen Bedi, or any one of our experienced ICBC car accident lawyers in Vancouver, Fort St John, Surrey, or Kelowna. We always meet with clients for FREE and are available to answer your questions online, by phone, or in person.



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