Some clients come to us believing that they won’t succeed in a claim for damages because they were at fault, or partially at fault for the accident which caused their injuries.
What these clients often don’t know is that the law doesn’t view who is at fault as a black and white issue. Courts can, and often do, split liability between two or more parties, including the injured parties. When a plaintiff is found to have some fault in the accident that caused their own injuries, it is called contributory negligence.
It is essential to remember that even if you are concerned that you may have contributed to your injuries, you should still contact a lawyer specializing in personal injury to discuss your situation.
What does this mean for my case?
Contributory negligence is assigned on a percentage basis. For example, a court may find that you are 25% responsible for your own injuries. Your damage award would then be reduced by that degree. In that situation, if your case is worth $100,000 in damages, 25% would be deducted and you would recover $75,000.
When might I be found contributorily negligent?
Motor Vehicle Collisions
Failing to Wear Your Seatbelt
If you were injured in a motor vehicle accident and you were not wearing your seatbelt, you could be found up to 25% contributorily negligent, as held by the Ontario Court of Appeal in Snushall v Fulsang[1]. However, to be apportioned 25% liability, the case would have to be such that all of your injuries could have been avoided by wearing a seat belt. In most cases, an unbelted injured plaintiff is found between 5% and 10% liable.
Contribution to the accident
More often than not, motor vehicle collisions are caused by the combined negligence of both drivers, and apportionment of fault must be determined.
Contributory negligence is sometimes apportioned to injured drivers when you don’t expect it. In Martin-Vandenhende v Myslik[2], for example, despite the general proposition that fault for a rear-end collision lies solely with the driver of the rear car, the Ontario Court of Appeal held that the injured Plaintiff, who was rear-ended while slowing down to execute a left-turn into a private driveway, was 10% at fault for the accident, as she did not check her mirrors or blind spot before slowing down, thereby failing to ensure that she could turn safely.
Cyclists
Failing to wear your safety helmet
Just as if you were injured in a car accident and were not wearing a seatbelt, if your injuries were acquired in an accident where you were a cyclist and you were not wearing a safety helmet, you could be found between 5-10% contributorily negligent.
The extent of your contributory negligence would be assessed in the context of your injuries. As per Hodder (Guardian ad litem of) v Waddleton[3], if your injuries are of the type that they would have been lessened by wearing a helmet, greater contributory negligence will be found than if they wouldn’t have been. For example, if you were not wearing a helmet and broke your leg, lesser contributory negligence will likely be apportioned to you than if you were not wearing a helmet and acquired a concussion.
In two cases, Abou-Marie (Litigation Guardian of) v Baskey [4] and Repic v Hamilton (City)[5], Ontario courts have declined to assign any contributory negligence to cyclists for not wearing a helmet when there was no evidence that a helmet would have lessened the extent of the cyclists’ injuries.
Contribution to accident
Just as in the case of a driver in a motor vehicle accident, cyclists also face the possibility of having their damages further reduced proportionally to their contributory negligence in the accident occurring. In the case of cyclists colliding with motor vehicles, the amount typically falls in the range of 0-50%.
Pedestrians
Pedestrians can also be found partially liable for their own injuries despite having been hit by a motor vehicle. For contributory negligence to be apportioned to you as a pedestrian, it must be shown that your injuries were foreseeable, you did not take reasonable steps to care for your own safety, and that this failure was a proximate or effective cause of your injuries.[6]
This often can be proved when the pedestrian was injured while intoxicated. The courts have been apportioned plaintiffs between 20% and 70% liability when they were hit by a car while intoxicated and walking on a road at night.
Recreational boating
Contributory negligence does not just apply to roadways. In 2016, approximately 43% of Canadians went boating, yet few consider the risk they take by doing so. The courts have held that as a plaintiff injured in a boating accident, you can be found contributorily negligent for failing to have your boat lights turned on at night, not wearing a life jacket, and for being intoxicated.
In Chamberland v Fleming[7], the Plaintiff drowned when a motorboat swamped the canoe he was operating. The Plaintiff could not swim. 25% contributory negligence was apportioned to the Plaintiff for failing to wear a life jacket.
Conclusion
Plaintiffs who feel they are partially at fault for their accident should not be deterred from bringing a claim for damages. We are dedicated to zealously advocating for all of our clients, and will fight to reduce any contributory negligence which may be apportioned to you.
[1] [2005] OJ No 4069 (ONCA).
[2] 2012 ONCA 53.
[3] [1993] NJ No 262 (Nfld TD)
[4] Abou-Marie (Litigation Guardian of) v. Baskey, 2001 CarswellOnt 4337, 10 A.C.W.S. (3d) 290 (Ont SCJ)
[5] Repic v. Hamilton (City), 2009 CarswellOnt 6796 (Ont SCJ)
[6] R v Rados, 2009 ONCJ 166, [2009] OJ No 1558
[7] [1984] Alta D 3380-01 (QB)