Unbuckling the law of contributory negligence

In Wormald v. Chiarot, 2016 BCCA 415, the British Columbia Court of Appeal reviewed the law of contributory negligence and, in particular, the significance of proving that a plaintiff’s failure to take reasonable care was causally connected to the loss sustained.

In Wormald, the plaintiff was injured in a motor vehicle accident while sitting in the back hatch area of a vehicle where no seatbelts were available. The trial judge considered a number of factors in relation to the plaintiff’s contributory negligence, specifically:

1. The driver had a novice license;
2. The driver had been drinking contrary to the restrictions of the novice license (although she was not intoxicated);
3. The vehicle had more occupants than it was designed to carry;
4. The plaintiff sat in an area where she knew there were no seatbelts;
5. Over the course of the night there were several opportunities for the plaintiff to remove herself from the situation, but she did not do so; and
6. The other occupants planned to throw eggs at people from the moving vehicle.

Ultimately, the trial judge found that the plaintiff was 40% contributorily negligent and reduced her award of damages accordingly. On appeal, the Court considered whether the finding of contributory negligence was reasonable.

The plaintiff argued that the trial judge had erred in finding contributory negligence because the accident was caused solely by excessive speed and not any of the other factors referred to by the trial judge. At paragraphs 14 and 15, the court provided the following helpful summary of the law on contributorily negligence:

“The analysis for contributory negligence involves two considerations: (1) whether the plaintiff failed to take reasonable care in her own interests; and (2) if so, whether that failure was causally connected to the loss she sustained: Enviro West Inc. v. Copper Mountain Mining Corporations, 2012 BCCA 23 at para. 37.”

“To satisfy the requirement of a causal connection between the plaintiff’s breach of the standard of care and the loss sustained, the defendant must establish more than that but for her negligence, the damage would have been avoided. The plaintiff’s conduct must be a “proximate cause” of the loss in that the loss results from the type of risk to which the appellant exposed herself: Bevilaqua v. Altenkirk, 2004 BCSC 945 at paras. 39 – 43 (per Groberman J., as he then was). In other words, the plaintiff’s carelessness must relate to the risk that made the actual harm which occurred foreseeable: Cempel v. Harrison Hot Springs Hotel Let. (1997), 43 B.C.L.R. (3d) 219, [1998] 6 W.W.R. 233 (C.A.) at para. 13.”

The Court then addressed and dismissed each of the trial judge’s reasons in turn:

1. The fact that the driver had a novice license was neither causative, nor did it pose a risk that society deems unacceptable;
2. There was no evidence that alcohol caused the accident. The evidence was that the respondent driver had only a sip of cider and neither she nor the plaintiff were impaired;
3. There was no evidence that the overcrowding in the vehicle interfered with the operation of the vehicle or otherwise contributed to the plaintiff’s injuries;
4. The so-called “seatbelt defence” did not apply, as there was no evidence this caused or exacerbated the plaintiff’s injuries;
5. There was no evidence of bad driving until a moment before the accident and so there was no opportunity to leave the vehicle prior to the accident; and
6. There was no evidence that the egg throwing interfered with the operation of the vehicle.

Ultimately, the Court concluded that none of the factors the trial judge considered, individually or cumulatively, caused the plaintiff’s loss.

The defendant argued that, regardless, the plaintiff was negligent in going for a “joy ride” in the first place, which showed a failure to take due care. In doing so they relied on Thon v. Podollan, 2001 BCSC 194. In Thon, a plaintiff’s damages were reduced simply for riding in a vehicle that was not equipped with a seatbelt. Thon differentiated itself from the general requirement to prove that a seatbelt would have prevented or reduced the plaintiffs’ injuries on the following basis:

“…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… 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.”

The Court of Appeal expressly disagreed with the reasoning in Thon, commenting that there was no meaningful difference between not wearing an available seatbelt and sitting where no seatbelt was available – each involving the risk of injury by riding unrestrained. In doing so, the Court held:

“It can always be said that an accident could have been avoided by not getting in a vehicle. But the risk of an accident must be proximate, such as that posed by an obviously impaired driver, in order to justify a finding of contributory negligence. I infer from his reasons that the judge thought the circumstances were fraught with the risk that there might be an accident of some kind. I find that too vague a basis on which to find Ms. Wormald contributorily negligent. Life is full of risks, more so perhaps for young people, which society accepts by granting driver’s licenses to 16-year-old persons. Accepting a ride with friends in high spirits out on a lark is not an inherently and unacceptably dangerous activity.”

Accordingly, the Court found there was no evidence that any of the possible grounds for contributory negligence had been made out. The defendant had not established that any failure on the part of the plaintiff to take reasonable care was causally connected to the loss sustained. The Court of Appeal overturned the trial judge’s finding of contributory negligence and reinstated the plaintiff’s full award for damages.

This case serves as a helpful reminder that, in order to justify a finding of contributory negligence, it is important to prove that the plaintiff’s failure to take reasonable care also contributed to the loss.