An individual has a responsibility to care for his or her own safety.
In a lawsuit, when a plaintiff contributes negligently to causing his or her own injury the court must determine to what extent that person is at fault for their own injury. This is referred to in law as “contributory negligence” and the onus, that is the burden of proof, lies on the defendant to establish contributory negligence. Once established, apportionment is based on the degree to which each person was at fault, not on the basis to which each person’s fault caused the damage or loss. In assessing comparative fault, or blameworthiness, the court must consider the degree of risk created by each of the parties and apportion liability based on the nature and extent of each party’s departure from the relevant standard of care. The levels of fault under consideration may vary from a reckless disregard for safety to a minor lapse of care.
If a court finds that a plaintiff is contributorily negligent, the court will reduce the plaintiff’s award for damages by the degree that it has determined the plaintiff is at fault.
In motor vehicle accident cases the defence of contributory negligence may be advanced in a wide variety of circumstances. Not uncommonly, a plaintiff’s failure to wear a seatbelt is one; voluntarily riding with an impaired driver is another.
A plaintiff may be found to have failed to take reasonable care for his or her own safety by not wearing an available seatbelt or by accepting a ride in a vehicle not equipped with seatbelts. If a seatbelt was available but not worn, the evidence must establish that it was operational and the plaintiff’s injuries would have been reduced by usage to justify a finding of contributory negligence. Although there is no hard and fast rule as to apportionment in cases involving a successful seatbelt defence, the plaintiff is often held to be 10% to 25% contributorily negligent for failing to wear a seatbelt.
What is no seatbelts are available in the vehicle at all? In Thon v. Podollan, 2001 BCSC 194 the judge found the plaintiffs were contributorily negligent for accepting a ride in a vehicle not equipped with seatbelts and apportioned liability of 10% to each of them. In so doing, he explained the difference between cases involving an available but unused seatbelt and those in which a seatbelt is unavailable. At paragraphs 56 and 57, he stated:
 Counsel for the defendants submits that the plaintiffs were contributorily negligent in assuming the risk of driving in the back seat of the Podollan vehicle when it was not equipped with seat belts. He submits that if they had refused that risk, by not getting in the backseat of a vehicle not equipped with seat belts, they would not have sustained their injuries …
 I find the defendants’ argument that, in this case, Tammy and Tanya did not take reasonable care for their own interests, and thus contributed to their own injuries, by riding in a vehicle not equipped with seat belts, to be unanswerable. Counsel for the plaintiffs submits that, even if the defendants have established the first part of the so-called “seat belt defence”, as set out in Gagnon v. Beaulieu,  1 W.W.R. 702 (B.C.S.C.), they have not established the second branch, that the injuries would have been prevented or less severe if it had been worn. However, the argument is not that the injuries would have been prevented or reduced, if the plaintiffs had worn an available seat belt. Rather, it is that the injuries would have been avoided entirely if the plaintiffs had not assumed the risk of riding in the back of the Jeep without seat belts. As counsel for the defendants pointed out, the important distinction between choosing to ride in a vehicle without a seat belt, and choosing not to wear an available seat belt, relates to the consequences of the negligence. In the former circumstances, the exercise of reasonable care would have avoided the injuries in their entirety; in the latter circumstances, involvement in the accident would not have been avoided, and the issue thus arises as to whether the injuries would have been reduced by seat belt usage…
A plaintiff may also be found to have failed to take reasonable care for his or her own safety by accepting a ride with an intoxicated driver when the plaintiff knew or should have known of the driver’s intoxication when the ride was accepted. An objective assessment of all of the circumstances is required and, where the plaintiff joins the defendant in becoming intoxicated, liability may be imposed taking into account their joint participation in a hazardous enterprise. In such cases, the plaintiff is often held to be 25% to 40% contributorily negligent.
In Neufeld v. Foster,  B.C.J. No. 764, the Court considered defences of contributory negligence based on both the plaintiff’s failure to wear an available seat belt and voluntarily riding with an impaired driver. The plaintiff, the defendant and others were over-served alcohol at a pub, left the pub intoxicated and were involved in an accident shortly thereafter. The Court concluded that the evidence did not prove the plaintiff’s injuries would have been reduced if she had worn the seat belt. She accepted, however, that the plaintiff knew the driver was intoxicated and failed to show appropriate regard for her own safety by accepting the ride. In these circumstances, she apportioned liability 50% to the defendant, 20% to the pub and 30% to the plaintiff.
The law’s reduction of an individual’s award for damages by the degree that it has determined the plaintiff is at fault is simply common sense; individuals have a duty to themselves to take reasonable care for his or her own safety.
Contact Andrew Spence at DuMoulin Boskovich LLP for your legal needs.