In Snushall v. Fulsang, released today, the Court of Appeal discussed the appropriate treatment of contributory negligence in an MVA case, based on a plaintiff’s failure to wear (or to wear properly) a seatbelt.
The jury in this case had assessed contributory negligence of 35 percent. The trial judge had suggested a range of 5-25%, but instructed the jury that it was free to make its own assessment (which it did).
The Court of Appeal reviewed caselaw from this country and the United Kingdom and concluded that juries should not be given this degree of latitude. Instead, they should be limited to a range of 0-25% for contributory negligence related to seatbelt use.
Interestingly, the C.A. said that the high end of the range (25%) should only be applied in those cases “where the jury is satisfied that substantially all the damages could have been prevented by wearing a seatbelt” [emphasis added].
The Court made it clear, that “even in a case where the evidence establishes that 100% of the damages would have been prevented by wearing a seatbelt, the jury is not free to find that the plaintiff’s damages should be reduced by 100%. The defendant, as the tortfeasor, must bear most of the responsibility.”