What is Contributory Negligence?
Contributory negligence is another legal defense ICBC will use to try and reduce your injury compensation. It means that if you fail to take reasonable precautions for your own safety, you can be found to have contributed to your own injuries. The result is that your compensation may be reduced by a percentage amount to reflect your own lack of care. Basically, contributory negligence in ICBC cases does not refer to fault (liability) for causing the accident, it is about taking reasonable steps to avoid or lessen your injuries if you are in an accident. So, a passenger injured in an accident can be contributorily negligent even though not at fault for causing the accident.
Common Types of Contributory Negligence
The two most common situations where contributory negligence comes in to play are when a vehicle occupant fails to wear a seatbelt, or when a passenger knowingly takes a ride with an impaired driver.
Failure to where a seatbelt is often raised as a contributory negligence defense. There are generally 3 elements that ICBC must prove, on a balance of probabilities, to succeed:
1) That a seatbelt was available to be used;
2) The injured claimant was not wearing a seatbelt; and,
3) The injured claimant’s injuries were made worse because a seatbelt was not being worn.
The most difficult element for ICBC to prove is that the injuries were worsened by the failure to wear a seatbelt. In some cases it may be obvious, but usually ICBC needs to get expert engineer or medical evidence to prove this element. This is because it does not automatically follow that someone’s injuries will be reduced if a seatbelt is worn. Indeed, there are situations where a seatbelt may not help or may even lead to more serious injuries.
If ICBC succeeds in proving the seatbelt defense, the compensation deduction is usually in the range of 15%-25%.
Riding with an Impaired Driver
If a passenger voluntarily accepts a ride from an intoxicated driver, and an accident happens, the passenger may be found contributorily negligent for taking an unreasonable risk. The elements ICBC generally needs to establish this defense are:
1) The driver was intoxicated;
2) The injured passenger knew or ought to have known the driver was intoxicated;
3) The injured passenger voluntarily took a ride with the intoxicated driver; and,
4) The accident occurred in whole or in part because of the driver’s intoxication.
If all these elements are not established, ICBC will not prove this defense. So, for example, if an intoxicated driver is in no way at fault for an accident, the passenger cannot be found contributorily negligent.
In cases where ICBC does prove this defense, the range of deduction is usually around 25%-40%. This broader range reflects the varied circumstances in which this defense may arise.
There are other frequent situations where the contributory negligence defense is raised, such as failure to use a properly adjusted headrest, or failure to wear a helmet or protective clothing (applicable to bicyclists/motorcyclists). In all cases, the burden is on ICBC to prove the defense.
Finding the right ICBC lawyer
If you have an ICBC injury claim and a contributory negligence defense may be raised, you need to get an experienced personal injury lawyer on your side. These defenses can be quite complex and, if proven, will have a significant impact on your award of damages. We are very familiar with all the contributory negligence defenses and have successfully opposed these defenses in countless cases for our clients. We will be very happy to help you as well.