Am I liable for my Injuries if I’m not wearing a Seatbelt?

Am I automatically guilty of an offence for not wearing a seat belt?

In Ontario, failing to properly wear a seat belt is an offence under the Highway Traffic Act.  However, in R. v. Wilson, 2014, the Ontario Court of Appeal found that this is a ‘strict liability' offence rather than an ‘absolute liability’ offence.  As such, ‘due diligence’ has been accepted as a defence.  In Wilson, a police officer observed a driver at a stop sign with his seatbelt hanging loosely by his shoulder and then charged the driver with failing to wear a seat belt. However, the driver argued that he had just removed his seat belt to adjust his coffee cup in a backseat holder because coffee was spilling on his laptop.  The judge in this case concluded that a vehicle occupant may avoid conviction in rare cases, if they can prove that they did their best to comply with the regulation and/or exercised reasonable care to avoid the prohibited act.  

What happens when you are injured while not properly wearing a seat belt?

Unfortunately, sometimes a driver or passenger is injured in a car accident while not wearing a seat belt. If the injured party subsequently sues the ‘at fault’ driver for negligence in causing the accident, the plaintiff will likely be found contributorily negligent for their injuries, and the damages awarded to the plaintiff will be reduced by the percentage deemed negligent.  

How much less in damages is a contributorily negligent plaintiff generally awarded?

In Snushall v. Fulsang, the Ontario Court of Appeal heard a case in which an injured passenger was awarded damages in a previous trial by jury, but was found 35 per cent contributorily negligent for failing to affix the shoulder belt portion of the seat belt (i.e. only the lap belt portion was attached).  The passenger appealed the amount of negligence attributed to her failure to be properly belted.  The injured person was a passenger in a car that rear-ended another vehicle and she sustained head and back injuries as a result of the crash.  It was alleged that her head injuries were likely sustained when her head hit the interior of the car. The car in which the passenger was travelling was a 1968 Ford Torino, and although the driver and right front seat passenger seats were equipped with shoulder harnesses, the Traffic Act requires the occupants of the older model car to wear only the seat belt and not necessarily the shoulder harness.

The injured passenger appealed the amount of negligence, 35 per cent, that the jury attributed to her failure to be properly belted.

In the original trial by jury, the judge had instructed the jury that "in cases where failure to wear a seatbelt causes or contributes to the injuries, the degree of contributory negligence can range between 5 per cent and 25 per cent, with most cases being in the lower portion of that range", although the jury was not limited to that range.  However, the Court of Appeal judge noted that the trial judge’s instructions to the jury could have been improved upon.   The appeal judge suggested that rather than stating that a failure to wear a seatbelt caused or contributed to the injuries incurred, a better instruction is to tell the jury that only the ‘at fault’ driver’s negligence caused the plaintiff’s injuries, however, Ontario law permits a reduction in the claimant’s damages if they did not take reasonable precautions to protect themselves in the event of an accident.  The appeal judge concluded that the jury acted unreasonably in assigning 35 per cent negligence after having been told that most cases are in the lower range of 5 to 25 per cent.  The appeal judge decided that an amount of 5 per cent contributory negligence for the injured plaintiff is appropriate under the circumstances.

Another case, Mikolic v. Tanguay and Albano, also involved a car accident that resulted in serious injuries to the plaintiff.  The plaintiff fractured his collarbone, suffered a mild brain injury, and developed chronic pain, depression and post-traumatic stress disorder.  In this case, the trial jury found damages in favour of the plaintiff, but also found the plaintiff 20 per cent contributorily negligent for not having worn a seatbelt at the time of the accident.

There is substantial evidence from numerous studies that, on average, seat belts reduce the likelihood of serious injury and death in the event of an accident.  It is for this reason that seatbelts were made mandatory in Ontario in January 1976 and many other parts of the world have adopted this position.  That being said, the courts recognize that if you are injured by a negligent driver, it is the ‘at fault’ driver that bears responsibility for the accident and your injuries.  Accordingly, although a failure to wear a seat belt may have increased the severity of injuries, a finding of contributory negligence will generally only decrease the amount of damages awarded to the accident victim by 5 to 25 per cent, with most cases decided in the lower range.