Surrey lawyers explain – what is contributory negligence?
Our surrey lawyers have put together this article to explain the basic principles of contributory negligence and how it is used as a defence by ICBC to try to reduce or deny compensation for personal injury.
Contributory negligence is very commonly raised as a defence in motor vehicle accident claims in BC. It is a defence that operates to apportion damages based on comparative fault between plaintiffs and defendants. It operates in this way where there is a personal injury claim arising out of car accident: ICBC will plead the defence, arguing that the injured plaintiff failed to take reasonable precautions for his or her own safety and as a result contributed to their own injuries; the defence is fact-specific, and if ICBC can prove it on the facts, the injured plaintiff’s personal injury compensation will be reduced by a percentage amount to reflect his or her own lack of care.
Common situations in which ICBC raises contributory defence
Two of the most common situations where contributory negligence is raised are when a passenger fails to wear a seatbelt, or when a passenger knowingly takes a ride with an impaired driver. There are other situations where the contributory negligence defence may be raised, such as where ICBC alleges that the injured plaintiff failed to use a properly adjusted headrest. Contributory negligence is also frequently raised by ICBC as a defence in motorcycle or bicycle accident personal injury claims (for example, ICBC will allege that the injured rider failed to wear a helmet or protective clothing and as a result contributed to their own injuries).
ICBC must prove contributory negligence
Contributory negligence is a defence, proof of which must be given by the defendant. As such, when ICBC raises the defence of contributory negligence, it is up to ICBC to prove two elements on a balance of probabilities:
- That the injured plaintiff failed to take reasonable care for his or her own safety; and
- The extent to which the injured plaintiff’s failure to take reasonable care contributed to his or her own damages.
The onus of proof with respect to the contributory negligence defence was recently affirmed by the BC Court of Appeal in Rhodes v. City of Surrey, a personal injury claim in which the injured plaintiff was found to be contributorily negligent to the extent of 75% for her failure to exercise reasonable care for her own safety. As a result, she was only able to recover 25% of her personal injury damages.
Get advice from an experienced personal injury lawyer (Surrey, Delta, Vancouver, Burnaby)
If the contributory negligence defence is raised in your ICBC claim, you need an experienced personal injury lawyer on your side. As demonstrated by the Rhodes v. Surrey personal injury case, it will have a significant impact on your award of damages if the defence is proven. Contact Simpson, Thomas & Associates to schedule a free initial consultation with one of our experienced personal injury lawyers (Surrey, Delta, Vancouver, and Burnaby office appointments are available).