If I am injured in a crash, will my failure to wear a seatbelt impact my ability to recover compensation for my injuries? What if the defence cannot prove that a seatbelt would have made any difference to my injuries?
In today’s personal injury trial decision of Ackermann v. Pandher (2017 BCSC 880), the plaintiff (Mr. Ackermann) was a Kelowna resident who suffered a devastating compound right wrist fracture in a 2011 crash. A major argument by the defence in this case was that the failure to wear his seatbelt should make Mr. Ackermann contributorily negligent for his injuries (also known as “the seatbelt defence”). Mr. Acerkmann’s evidence was that he kept his seatbelt off due to a recent bladder surgery and the discomfort caused by the seatbelt to that region, and his counsel argued that his urologist’s opinion medically justified his decision not to wear the seat belt. Importantly, Mr. Ackermann’s counsel pointed out that in a seatbelt defence the burden is on the “defence to prove that his use of a seatbelt would have prevented his wrist injury or reduced its severity”.
Mr. Justice Schultes first summarized the law in this regard, concluding that contributory negligence requires evidence before the court of the likely mechanism of injury (para 113), while in some cases common sense will lead to the conclusion that the injuries were more severe because of the failure to wear a seatbelt (para 114), that a successful seatbelt defence requires knowledge of when – in the course of the accident – the injuries occurred (para 115).
In rejecting the seatbelt defence, he made the following conclusions:
[121] As to the relationship between the lack of seatbelt use and Mr. Ackermann’s particular injuries, I think that the arguments of the parties on this issue are really reflecting different aspects of the same governing principle. Where the mechanism of injury and its link to the lack of restraint of the plaintiff within the vehicle is obvious, as in the cases relied on by the defendants, it will be possible to draw the clear factual inference that presents itself, without requiring the assistance of an expert opinion. Where the dynamics of the accident are more complex and the source of the plaintiff’s injuries within the sequence of events is less clear, the causative role of their failure to wear the seatbelt may not be a finding that can be made solely on the basis of common sense. In certain situations, like Terracciano, even expert evidence may not be specific enough to meet the defendants’ onus.
[122] I feel comfortable finding on the basis of the current evidence that Mr. Ackermann would not have ended up in the front passenger seat with Ms. Martens if he had been wearing his seatbelt. Where I conclude that the defendants fall short is my ability to be satisfied on a balance of probabilities that his wrist injury would not have occurred, or not been as severe. We do not know, because Mr. Ackermann could not describe it, where in the course of the accident his wrist was injured. We know, because it was Ms. Martens’ evidence and the basis of her injury claim, that some part of his body struck her shoulder, but no specific probable mechanism of injury to him emerges. And balanced against the theory that it occurred due to his ejection from his position is his evidence that he bent down and covered his head before impact, which adds a reasonable possibility that his wrist was injured when he was still in a position to which a seatbelt would have confined him. I think a resolution of this question to the required standard would have required some evidence of the post-accident dynamics of a person in Mr. Ackermann’s location and bodily position, with and without the seatbelt, and an attempt to link his wrist injury with his likely route of travel to his resting position.
[123] On the current evidence I conclude that the defendants have not met their burden and I am therefore unable to attribute fault to Mr. Ackermann for his injuries to any degree.
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