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Our Vancouver ICBC car accident claim and motor vehicle  injury lawyers know that wearing a seatbelt is good practice and it’s foolish not to. The likelihood of  a Vancouver ICBC car accident injury while not wearing a seatbelt is increased, although in some cases expert evidence can prove the injury would have happened anyways.

Expert car accident injury medical and engineering evidence can be called on the issue of how much effect the wearing of a seatbelt would have had on the severity of the injury suffered by a Vancouver car accident victim.

Failure to wear a seatbelt can result in a finding that the injured person should share the blame for their injuries. This sharing of blame in a Vancouver ICBC injury claim is called “contributory negligence”

In the recent case of Mossimann the court found an injured Vancouver ICBC car accident victim 25% to blame for their injuries because they were not wearing aseatbelt.

31]         The plaintiff’s counsel submitted that the court ought to accept Mr. Lukar’s evidence on the basis that an adverse inference could be drawn from the defendants’ failure to produce an expert report. That is not, in my view, a proper approach to opinion evidence. While it may be risky, counsel are entitled to rely on cross-examination and argument in relation to an expert witness as with any other witness. The defendants referred to Lakhani v. Samson, 1982 CarswellBC 2262, [1982] B.C.W.L.D. 1126, 70 B.C.L.R. 379 a decision of McEachern C.J.S.C. 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.

[32]         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%.

When you get hurt through no fault of your own and have a VANCOUVER ICBC car accident claim you need someone to do justice on your behalf and to ensure you or a loved one get the best possible settlement. At MacLean Personal Injury we’re dedicated to both. Call now to meet with us for free at 604-602-9000.

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