It is hard to believe that mandatory seat belt legislation has been in effect in Ontario since January 1, 1976 – 35 years ago. As statistics reflect, some 92% of us use our seat belts, compared to 17% when the law came into effect. Obviously, a substantial change of mindset has occurred but it is still hard to understand why that statistic is not even higher.
Recently, a plaintiff lawyer suggested to me, in relation to a case which I am defending, that the defence must demonstrate that use of a seat belt would have prevented the injury in question in order for the seat belt defence to come into play. Our research would reflect that this is not, in fact, the case. Briefly stated, the law would appear to be as follows.
The leading authority is a case by the name of Froom v. Butcher, a 1975 decision of England’s eminent jurist Lord Denning. He stated that a 25% reduction in damages was suitable for situations where the use of a seat belt would have prevented an injury from occurring entirely. He further stated that 15% would be an appropriate reduction for situations where the use of a seat belt would have made a considerable difference to the plaintiff’s resulting injuries.
With a defence orientation, one might wonder why that percentage should not be far higher if the use of a seat belt would have prevented the injury. The rationale of Lord Denning, in response to such a thought process, is as follows:Whenever there is an accident, the negligent driver must bear by far the greater share of responsibility. It was his negligence which caused the accident. It also was a prime cause of the whole of the damage.
But insofar as the damage might have been avoided or lessened by wearing a seat belt, the injured person must bear some share.The Ontario Court of Appeal thoroughly reviewed Lord Denning’s rationale in the case of Snushall v. Fulsang in 2005. While the Court certainly indicated that where the evidence establishes that 100% of the damages could have been prevented by wearing a seat belt, a ceiling is necessary. Much of the Court’s commentary in this case centered on the debate as to the appropriate range and ceiling for contributory negligence.
The 25% ceiling, as suggested by Lord Denning, was adopted in Ontario by the Court of Appeal, in this particular case and that law still holds. The Court of Appeal did not buy into the approach of fixing a mid-range contribution for less severe situations. The Court set out a long list of 20 Canadian cases where seat belt contribution has been assessed in the range of 5% to 25%. While the Court does not specifically say so, I believe that it is strongly inferred that it is open for the trier of fact, upon proper evidence and, in the case of a jury trial, upon proper instructions, to make a finding of contribution anywhere in the range of zero to 25%, with the upper end only available in those cases where substantially all of the damages could have been prevented.
Evidentiary issues, in relation to establishing seat belt contribution, are certainly challenging for the defence. The onus rests with the defendant to establish upon a balance of probabilities that the use of a seat belt would have lessened or prevented injuries. Strong evidence from a professional engineer is essential. Supporting evidence from the medical side, usually an orthopaedic doctor or neurologist, is very helpful to the trier of fact as well. Finding doctors who are willing to proffer these kinds of opinions is becoming increasingly difficult.
Perhaps there will come a time when seat belt use is at 100% and this discussion will no longer be necessary.