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Surrey Personal Injury Lawyers Explain ICBC Claim Seatbelt Defences

Surrey Personal Injury Lawyers Explain ICBC Claim Seatbelt Defences

Recently, a Surrey personal injury client came to our Surrey personal injury lawyers office and told us “I’ve been badly hurt in a Surrey ICBC claim and personal injury case and I wasn’t wearing my seatbelt. I’m worried I will get no money award for my pain and lost wages.” Thankfully, this client came to us before speaking with an ICBC representative so we could explain to them how the “seat belt defence” works. Our Surrey seatbelt defence dispute lawyers handle these seatbelt contributory negligence claims often and know the pitfalls associated with the seatbelt defence. Our Surrey personal injury client left our office confident that our experienced Surrey personal Injury Lawyers- who can be reached at 604-576-5400- would aggressively protect him to ensure he received the largest personal injury award possible.

If you want to maximize your money award click here now. Had our client gone to ICBC before speaking with us, the adjuster would have asked him he was wearing his seatbelt and how high their headrest was adjusted in relation to the back of their head. ICBC adjustors ask these questions so they can determine whether ICBC will be able to reduce your damage claim by a certain percentage due to your failing to take reasonable care.

Does My Failure To Wear My Seatbelt Ruin My Chances Of a Large Injury Award?

Lorne MacLean, QC ICBC seatbelt defence Plaintiff's lawyer outside the Vancouver BC Supreme and Appeal Courthouse

Lorne MacLean, QC managing partner of MacLean Personal Injury outside the Vancouver BC Supreme and Appeal Courthouse explains the seatbelt defence

Fortunately for many British Columbians, BC’s mandatory seat belt legislation has either saved their lives or reduced their injuries. However, seat belts don’t always help minimize injury. Your failure to wear your seatbelt can reduce a Surrey and Vancouver ICBC claim injury settlement but the reduction, if made at all, ranges between 0 and 25%. The key to defeating the seatbelt defence is getting top Surrey and Vancouver personal injury counsel immediately when you are hurt. Contact us now. The fact that a seatbelt might have fully prevented the injury justifies only a 25 percent reduction in your award not 100 percent. Similarly, if the seatbelt would have reduced your injuries, the reduction in the award based on your injuries being partly the result of your failure to wear your seatbelt might be reduced something less than the 25 percent upper limit. See Harrison v. Brown, [1985] B.C.J. No. 2889 (S.C.); Thon v. Podollan, 2001 BCSC 194; Ford v. Henderson, 2005 BCSC 609.

What Does ICBC Need To Prove To Reduce My Money Award?

The onus rests with the defendant (who is usually represented by ICBC) to establish upon a balance of probabilities that the use of a seat belt would have lessened or prevented your injuries. This is often not an easy task and strong evidence from a professional engineer for you and for ICBC is usually required. Supporting medical evidence, usually an orthopaedic doctor or neurologist, is also helpful for negotiations and at trial. A great summary of how the seatbelt defence works in court comes from the 2010 BCSC 480 Beazley decision of of Mr Justice Goepel:

[29] It has been long recognized in British Columbia that a party who fails to use an available seatbelt and sustains injuries more severe than if the seatbelt had been worn will be found to be contributory negligent: Yuan et al. v. Farstad (1967), 66 D.L.R. (2d) 295 (B.C.S.C.); Gagnon v. Beaulieu, [1977] 1 W.W.R. 702 (B.C.S.C.).

[30] While there appears to have been statistical evidence led in Yuan and in Gagnon, subsequent cases have held that such evidence is not necessary. In Lakhani (Guardian ad litem of) v. Samson, [1982] B.C.J. No. 397 (S.C.) McEachern C.J.S.C. (as he then was) noted at para. 3: I reject the suggestion that engineering evidence is required in these cases. The court is not required to leave its common sense in the hall outside the courtroom, and the evidence is clear that upon impact in both cases the Plaintiff’s upper body was flung or thrown forward striking the dashboard or the steering wheel. And common sense tells me that the restraint of a shoulder harness would have prevented that, and therefore some of the injury from having occurred.

[31] To succeed on the seatbelt defence, the onus will be on the defendants to establish upon a balance of probabilities that the use of a functioning seatbelt would have avoided, or minimized Ms. Spehar’s injuries: Harrison v. Brown, [1987] 1 W.W.R. 212 (B.C.S.C.); Terracciano (Guardian ad litem of) v. Etheridge (1997), 33 B.C.L.R. (3d) 328 (S.C.).

If you have suffered any personal injury at all, you need to call us immediately at any of our 4 offices across BC or toll free at 1-877-602-9900. Contact us now.

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