Court rejects defence argument that plaintiff contributorily negligent for failing to wear seatbelt

In reasons for judgment released this week, the court in Ackermann v. Pandher, 2017 BCSC 880, refused to find the plaintiff contributorily negligent for failing to wear his seatbelt in circumstances where the plaintiff injured his wrist in a car accident (resulting in surgery and the insertion of metal plates into his wrist).  The defence argued the plaintiff would not have suffered the wrist injury had he been wearing his seatbelt.  The court rejected this argument, with Mr. Justice Schultes saying:

[105]     The defendants’ counsel submits that Mr. Ackermann should be assigned at least 25% fault because of his failure to wear a seatbelt.


[108]     On the question of what role wearing his seatbelt could have played in preventing Mr. Ackermann’s injuries, the defendants’ counsel submits that, despite the subjective impressions of the occupants, this was not such an extreme collision that wearing it would have been rendered useless. It was a side-swipe rather than head on collision; there was no major intrusion into the cabin area, and none where Mr. Ackermann was sitting; the occupants were able to leave the truck themselves; and Mr. Ackermann’s other injuries were minor and healed soon after.

[109]     In particular, the defendants resist the suggestion that proof of the ability of the seatbelt to prevent or reduce the injury that he suffered required expert evidence on their part...

[122]     ...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.

The full decision can be found here: