Snushall v. Fulsang

Snushall v. Fulsang Fulsang v. Vetzal [Indexed as: Snushall v. Fulsang]

78 O.R. (3d) 142

[2005] O.J. No. 4069

Docket: C40232

Court of Appeal for Ontario,

Feldman, Cronk and Juriansz JJ.A.

September 27, 2005

*Application for leave to appeal to the Supreme Court of Canada was dismissed with costs March 9, 2006 (LeBel, Fish and Abella).

Torts -- Negligence -- Contributory negligence -- Allocation of responsibility between plaintiff and defendant should not be based on relative degrees of causation but rather should be based on degrees of [page143] blameworthiness -- Plaintiff's contributory negligence for not wearing seatbelt should not exceed 25 per cent -- Jury's finding that plaintiff was 35 per cent contributorily negligent for failing to wear shoulder harness in addition to lap belt unreasonable -- Proper apportionment of plaintiff's contributory negligence 5 per cent -- Jury instruction on contributory negligence discussed.

S was seriously injured when the car in which she was a passenger, driven by F, struck the rear of another car driven by V. F's car was a 1968 Ford Torino, equipped with lap belts and separate shoulder harnesses. S was wearing only a lap belt. The trial judge 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", but that they were not bound by that range. The jury found that F was 80 per cent responsible for the injuries and damages sustained by S and V was 20 per cent responsible, and that S was 35 per cent contributorily negligent for failing to wear a shoulder belt. V and S both appealed.

Held, V's appeal should be dismissed; S's appeal should be allowed.

The jury's assessment of S's contributory negligence was beyond the scope of anything that could be accepted as reasonable on the record in this case. The allocation of responsibility between a plaintiff and a defendant should not be based on causation, but rather must be based on blameworthiness. Contributory negligence, solely for failing to wear a seatbelt, should not exceed 25 per cent. S complied with the legislatively-defined standard of care for an occupant of the older car in which she was riding. She was legally required to wear a lap belt, but not the shoulder belt. While this did not absolve her of contributory negligence, it was a relevant factor in locating her degree of fault within the available range. The evidence was that people tended not to wear the available type of shoulder harness properly, as it did not retract and was confining and uncomfortable. The evidence did not establish that wearing the shoulder harness would have prevented all of S's injuries. In all of the circumstances, the proper apportionment of S's contributory negligence was 5 per cent.

The trial judge's instructions to the jury, while in accordance with the standard jury charge, could be improved. Rather than refer to the failure to wear a seatbelt as "causing or contributing" to the injuries, it would be better to instruct the jury that the defendant's negligence, if such negligence is found, is the sole cause of all the injuries, but that the law allows some reduction of the plaintiff's damages if the plaintiff has failed to take reasonable precautions to protect himself or herself from the consequences of the defendant's negligence. The jury's task is to decide on the amount of the reduction considering, as one factor, the extent by which the damages might have been prevented, but keeping in mind that the defendant's negligence caused the accident and was the prime cause of all the damage. Moreover, the jury is bound to return an award within a range that is reasonable and should be so instructed. It would be preferable to instruct the jury that, where contributory negligence is found only for not wearing a seatbelt, its award should fall within a range of 0 per cent to 25 per cent, that the upper limit is available only in those cases where the jury is satisfied that substantially all the damages could have been prevented by wearing a seatbelt, and that, where the evidence does not establish that all the injuries would have been effectively prevented, the allocation should be less. A comment that most cases fall into the 5 per cent to 10 per cent range is useful additional guidance for the jury. [page144]

There was no basis for interfering with the apportionment of liability between V and F.

APPEALS from the judgment of Lax J., [2003] O.J. No. 1493, [2003] O.T.C. 363 (S.C.J.) regarding the apportionment of liability in negligence action and from the assessment of contributory negligence.

Froom v. Butcher, [1975] 3 All E.R. 520, [1975] 3 W.L.R. 379, 119 Sol. Jo. 613 (C.A.); Heeney v. Best (1979), 1979 2084 (ON CA), 28 O.R. (2d) 71, 108 D.L.R. (3d) 366, 11 C.C.L.T. 66 (C.A.), consd Other cases referred to Brough v. Templeton, [1997] O.J. No. 218, 23 O.T.C. 333, 68 A.C.W.S. (3d) 739 (Gen. Div.); Bulmer v. Horsman, 1987 107 (NB CA), [1987] N.B.J. No. 818, 82 N.B.R. (2d) 107, 208 A.P.R. 107, 42 C.C.L.T. 220, 3 M.V.R. (2d) 92 (C.A.) (sub nom. Horsman v. Bulmer); Cempel v. Harrison Hot Springs Hotel Ltd., 1997 2374 (BC CA), [1997] B.C.J. No. 2853, [1998] 6 W.W.R. 233, 100 B.C.A.C. 212, 43 B.C.L.R. (3d) 219, 76 A.C.W.S. (3d) 680 (C.A.); Dodgson v. Topolinsky (1980), 1980 1892 (ON SC), 33 O.R. (2d) 585, 125 D.L.R. (3d) 177 (H.C.J.); Fowler v. Schneider National Carriers Ltd., 2001 NSCA 55, [2001] N.S.J. No. 123, 193 N.S.R. (2d) 206, 602 A.P.R. 206 (C.A.); Galaske v. O'Donnell, 1994 128 (SCC), [1994] 1 S.C.R. 670, [1994] S.C.J. No. 28, 89 B.C.L.R. (2d) 273, 112 D.L.R. (4th) 109, 166 N.R. 4, [1994] 5 W.W.R. 1, 21 C.C.L.T. (2d) 1, 2 M.V.R. (3d) 1; Heller v. Martens, [2002] A.J. No. 638, 2002 ABCA 122, 213 D.L.R. (4th) 124, [2002] 9 W.W.R. 71, 4 Alta. L.R. (4th) 51, 303 A.R. 84, 12 C.C.L.T. (3d) 255, 26 M.V.R. (4th) 282, 113 A.C.W.S. (3d) 1100; Howes v. Crosby (1984), 1984 2172 (ON CA), 45 O.R. (2d) 449, 6 D.L.R. (4th) 698, 2 O.A.C. 375, 29 C.C.L.T. 60, 24 A.C.W.S. (2d) 302 (C.A.); Koukounakis v. Stainrod (1995), 1995 621 (ON CA), 23 O.R. (3d) 299, [1995] O.J. No. 1369, 12 M.V.R. (3d) 78 (C.A.); Olmstead v. Vancouver-Fraser Park District, 1974 196 (SCC), [1975] 2 S.C.R. 831, 51 D.L.R. (3d) 416, 3 N.R. 326 Statutes referred to Automobile Insurance Act, R.S.N.L. 1990, c. A-22, s. 28.1 [as am.] Courts of Justice Act, R.S.O. 1990, c. C.43, s. 119 Highway Traffic Act, R.S.O. 1990, c. H.8

Jeffrey W. Strype, for appellants. R. Donald Rollo and Lucie Pivrnec, for respondent.

The judgment of the court was delivered by

[ 1 ] JURIANSZ J.A.:-- The appellants, Carol Snushall and George Vetzal appeal from the judgment of Lax J., sitting with a jury, dated March 19, 2003. At issue is the jury's apportionment of liability in a negligence action arising from a motor vehicle accident.

[ 2 ] Ms. Snushall was a passenger in a car driven by her fiancé Daniel Fulsang when it struck the rear of a cube van driven by Mr. Vetzal. The jury found that Mr. Fulsang was 80 per cent and Mr. Vetzal was 20 per cent responsible for the injuries and damages [page145] sustained by Ms. Snushall, and that Ms. Snushall was 35 per cent contributorily negligent for failing to wear a shoulder belt, although she was wearing a lap belt.

[ 3 ] Mr. Vetzal seeks to set aside the jury's finding that he was 20 per cent negligent. Ms. Snushall seeks to set aside the jury's finding of 35 per cent contributory negligence against her.

[ 4 ] For the following reasons, I would dismiss Mr. Vetzal's appeal and allow Ms. Snushall's appeal and reduce the assessment of contributory negligence against her to 5 per cent.

Mr. Vetzal's Appeal

Facts

[ 5 ] On July 28, 1997, Mr. Fulsang was travelling westbound on Taunton Road approaching the intersection of Old Scugog Road in the Town of Hampton in the Regional Municipality of Durham just after 9:00 a.m. As Mr. Fulsang drove over the crest of a hill some distance east of the intersection, he saw Mr. Vetzal's van as it was stopped facing south on Old Scugog Road at the intersection. The traffic lights at the intersection were green for the Fulsang vehicle and did not change at any time before the collision.

[ 6 ] Mr. Fulsang saw Mr. Vetzal turn right into the westbound lane of Taunton Road when he, Mr. Fulsang, was approximately halfway between the crest of the hill and the intersection. Mr. Fulsang assumed that Mr. Vetzal was going to continue westbound after he made the right turn. However, Mr. Vetzal intended to make an immediate left turn into a Coffee Time Plaza on the south side of Taunton Road just west of Old Scugog Road. He was unable to make the immediate left turn because of oncoming traffic and had to stop in the westbound lane of Taunton Road. Mr. Fulsang could not deny that Mr. Vetzal put on his left-hand turn signal to indicate his intention to turn into the plaza.

[ 7 ] Mr. Fulsang's vehicle struck Mr. Vetzal's van from the rear as Mr. Vetzal was stopped on Taunton Road waiting to make his left hand turn. Mr. Fulsang testified that the only reason he did not apply his brakes sooner than he did was because he assumed that Mr. Vetzal was going to accelerate after turning onto Taunton Road. Once he realized his assumption was wrong, it was too late to avoid the accident.

[ 8 ] Ms. Snushall was seriously injured in the accident. She brought an action against Mr. Fulsang, who in turn, brought a third-party claim against Mr. Vetzal. The jury awarded her general damages of $175,000; damages for past loss of income of $54,633; damage for future loss of income of $540,000; damages [page146] for future housekeeping/home maintenance of $92,612 and damages for future healthcare costs of $75,000.

[ 9 ] The jury found that Mr. Fulsang bore 80 per cent and Mr. Vetzal bore 20 per cent of the responsibility for the injuries and damages sustained by Ms. Snushall.

Analysis

[ 10 ] Mr. Vetzal submitted that the jury's allocation of liability to him was not supported by the evidence. He argued that the expert engineering evidence established conclusively that Mr. Fulsang had sufficient time to bring his vehicle to a stop after seeing Mr. Vetzal turn onto Taunton Road. Therefore, he argued, it was apparent that Mr. Fulsang had taken his eyes off the road and did not realize until it was too late that Mr. Vetzal had stopped instead of accelerating.

[ 11 ] I would reject this argument. The expert evidence was premised on Mr. Vetzal's testimony that he was stopped for four to five seconds on Taunton Road, waiting to turn left into the Coffee Time Plaza. It was open to the jury to reject Mr. Vetzal's testimony about how long he was stopped and conclude from all the evidence that he was stopped for a shorter time than he estimated in his testimony. Accordingly, the jury could give the expert evidence based on Mr. Vetzal's testimony no weight. The finding of the jury concerning Mr. Vetzal indicates that it concluded that he created a situation of danger by failing to yield the right of way to Mr. Fulsang when, facing a red light, he turned right onto Taunton Road. There was ample evidence to support this conclusion. Consequently, I would dismiss Mr. Vetzal's appeal.

Ms. Snushall's Appeal

Facts

[ 12 ] The Fulsang vehicle was a 1968 Ford Torino. Its driver's and right front passenger's seats were equipped with lap belts and separate shoulder harnesses. The middle front seat was equipped with only a lap belt. The Highway Traffic Act, R.S.O. 1990, c. H.8, required the car's occupants to wear the seat belt, but did not require them to wear the shoulder harness.

[ 13 ] There was no direct evidence whether Ms. Snushall was seated in the middle front seat or in the right-hand front seat, but it is undisputed that she was wearing only a lap belt. She testified that she did not know that there were shoulder belts available to be worn in the Torino. She said she had never seen Mr. Fulsang wear a shoulder harness, and he had never pointed one [page147] out to her. Mr. Fulsang testified that he knew that there were shoulder harnesses in the car, but he had never worn them; nor had he asked Ms. Snushall to wear them, as they restrained movement.

[ 14 ] The respondent submits that the jury did not accept Ms. Snushall's evidence that she was unaware of the shoulder harness. She was vigorously cross-examined on the fact that she had been driving in the car for some six months and had some familiarity with older cars.

[ 15 ] An expert engineer called by Ms. Snushall testified that the 1968 Torino was equipped with separate and independent lap and shoulder belts. On the passenger side of the car, the shoulder belt was mounted in the roof of the vehicle above the window and slightly behind the passenger's right shoulder. This type of shoulder belt had no tensioning apparatus and so, once fastened securely, it restrained the movement of the person wearing it. Consequently, people tended to wear the shoulder belt very loosely. There was no recoil mechanism to reduce the slack. This made the shoulder belt less effective.

[ 16 ] Ms. Snushall suffered a closed head injury and a back injury. At trial, the parties disputed which was the most severe injury, whether Ms. Snushall's head struck the interior of the car during the collision, and whether the head injury would have been prevented by the use of the shoulder harness.

[ 17 ] After reviewing the evidence relevant to the contributory negligence issue, the trial judge instructed the jury that the negligence of one or both of Mr. Fulsang and Mr. Vetzal in the operation of their motor vehicles was the cause of the accident and the primary cause of the injuries suffered by Ms. Snushall, and that the negligence that caused the accident was the most blameworthy. The trial judge instructed the jury that if it concluded that Ms. Snushall was guilty of contributory negligence in failing to wear the shoulder portion of the seatbelt assembly, the jury should assess her responsibility for her injuries "on a lesser degree". Then the trial judge said:

It may be of assistance to you to know 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; that is between 5 per cent and 10 per cent. You are not bound by this range, and if you find the plaintiff blameworthy, the percentage of blame for the omission to wear a shoulder belt will depend on the extent you are satisfied this failure caused or contributed to her injuries, keeping in mind that this is a somewhat unusual situation, as Ms. Snushall was wearing a lap belt required of her under the Highway Traffic Act, whereas in the cases to which I have referred, there was no seat belt worn at all. [page148]

[ 18 ] The jury found that Ms. Snushall was 35 per cent contributorily negligent for failing to wear the shoulder belt. Before this court, Ms. Snushall's counsel submitted that this finding is unreasonable both on the evidence and in principle.

Analysis

[ 19 ] The standard of review of a jury verdict in a civil case is well established. A jury verdict is not to be set aside as against the weight of the evidence unless it is so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it: see Olmstead v. Vancouver-Fraser Park District, 1974 196 (SCC), [1975] 2 S.C.R. 831, 51 D.L.R. (3d) 416.

[ 20 ] Section 119 of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides: "On an appeal from an award for damages for personal injury, the court may, if it considers it just, substitute its own assessment of the damages." In Howes v. Crosby (1984), 1984 2172 (ON CA), 45 O.R. (2d) 449, 6 D.L.R. (4th) 698 (C.A.), MacKinnon A.C.J.O. stated that if this court takes the view that an award of damages is too high or low by 50 per cent, it concludes that the damages are inordinately high or low and may set aside the award.

[ 21 ] In Koukounakis v. Stainrod (1995), 1995 621 (ON CA), 23 O.R. (3d) 299, [1995] O.J. No. 1369 (C.A.), Doherty J.A. stated that where there is no suggestion that the instructions to the jury were erroneous, the court may set aside an award that is so inordinately high that it must be a wholly erroneous estimate of the damages. He indicated that this court does not decide whether the jury made the "correct" award for general non- pecuniary damages, but whether the award is beyond the scope of anything that could be accepted as reasonable.

[ 22 ] A jury award assessing the degree of contributory negligence may be approached in the same way. The jury in this case concluded that Ms. Snushall was contributorily negligent. That finding was available on the evidence. However, I regard the jury's assessment of Ms. Snushall's contributory negligence as beyond the scope of anything that could be accepted as reasonable on the record in this case. It is outside the usual and appropriate range of contributory negligence for failing to wear a seatbelt and exceeds an appropriate and just result by more than 50 per cent. It is worth noting that the jury did not follow the clear guidance of the trial judge as to the proper range into which the verdict should fall, and assessed contributory negligence at a higher percentage than that urged by defendant's counsel in his closing address. [page149]

[ 23 ] It is also important to observe at the outset that Ms. Snushall's contributory negligence stems solely from the failure to wear a seatbelt. In some cases the plaintiff who fails to wear a seatbelt is also a driver who is found partially responsible for causing the accident, or undertakes a foreseeably increased risk of accident, for example, by becoming a willing passenger of an impaired driver. The contributory negligence in this case involves failing to wear a seatbelt and nothing else.

[ 24 ] It is understandable that a jury should have difficulty quantifying the relative responsibility for injuries suffered in a motor vehicle accident between the people or persons whose negligence led to the accident and the injured plaintiff who failed to wear a seatbelt. Both the negligence and the contributory negligence are commonly described as having a causal relationship with the injuries. However, the relationship of the defendant's negligence to the plaintiff's injuries is quite different than that of the plaintiff's contributory negligence to his or her own injuries.

[ 25 ] The plaintiff is injured by physical forces resulting from abrupt changes in the momentum of the vehicle during the accident. The defendant's negligence may be said to be the "cause" of the injuries because it initiates the sequence of events that leads to the accident and the physical forces that inflict the injuries. But for the defendant's negligence, the accident would not have taken place.

[ 26 ] The relationship of the failure to wear a seatbelt to the injuries is different because the accident would have occurred whether or not a seatbelt was worn. The failure to wear a seatbelt "causes" injuries in the sense that the failure to use a prophylactic "causes" pregnancy. Wearing a seatbelt helps prevent consequences that might otherwise result from the physical forces unleashed by the defendant's negligence. The plaintiff's contributory negligence is the failure to take reasonably prudent steps to protect herself from injuries that might result from an accident caused by another's negligence. The failure to wear a seatbelt may be said to be a "cause" of the plaintiff's injuries only in the sense that it contributes to the extent of the injuries suffered. If the plaintiff had been wearing a seatbelt at the time of the accident caused by the defendant's negligence, the injuries would have been less severe or even avoided altogether.

[ 27 ] The legal significance of this distinction is that the defendant whose negligence results in the accident has breached the general tort duty to take care to avoid endangering others, whereas by not wearing a seatbelt a person does not [page150] commit a tort but fails to protect himself or herself from the torts of others.

[ 28 ] Given the different character of the defendant's negligence and the plaintiff's contributory negligence, the question of how to divide responsibility for the plaintiff's injuries between them is difficult. It is not as straightforward as allocating responsibility among several actors all of whom have played a role in causing an accident because, in such a case, the sum of each person's individual negligence must add up to 100 per cent. By contrast, the degree of a defendant's negligence in causing an accident bears no relationship to how much of the damage might have been prevented had the plaintiff worn a seatbelt. No matter what the degree of the defendant's responsibility for causing the accident, the plaintiff might have averted all or none of the damage. In some cases, it may be said that both the plaintiff and the defendant "caused" 100 per cent of the damage because the defendant's negligence is the sole cause of the accident and the plaintiff's injuries could have been completely prevented by w earing a seatbelt.

[ 29 ] Since the extent to which the defendant and the extent to which the plaintiff "caused" the injuries are not related and cannot be compared directly, "causation" cannot be the basis of the allocation of responsibility between them. Lambert J.A. of the British Columbia Court of Appeal pointed this out in Cempel v. Harrison Hot Springs Hotel Ltd., 1997 2374 (BC CA), [1997] B.C.J. No. 2853, 43 B.C.L.R. (3d) 219 (C.A.), by criticizing apportionment of responsibility based on an assessment of relative degrees of causation as between the plaintiff and defendant. He drew a distinction between "causation" and "blameworthiness" when he said at para. 19:

I think that such an approach to apportionment is wrong in law. The Negligence Act requires that the apportionment must be made on the basis of "the degree to which each person was at fault". It does not say that the apportionment should be on the basis of the degree to which each person's fault caused the damage. So we are not assessing degrees of causation, we are assessing degrees of fault. In this context, "fault" means blameworthiness.

[ 30 ] Fruman J.A. of the Alberta Court of Appeal, in Heller v. Martens, 2002 ABCA 122, [2002] A.J. No. 638, 4 Alta. L.R. (4th) 51 (C.A.), at paras. 23-26, offered two compelling reasons why a strict causation approach, which would reduce the plaintiff's damages by the extent of the injuries that would have been prevented by a seatbelt, is inappropriate:

First, it incorporates the concept of last clear chance because it looks only to the consequences of the plaintiff's conduct -- the ability to avoid injury by wearing a seat belt -- rather than the entirety of the parties' tortious acts. Last clear chance has now been formally abolished in this province. [page151]

Second, an approach that focuses only on the extent to which injury would have been reduced had a seat belt been worn fails to address the primary objective of tort law: "to restore the plaintiff to the position he or she would have enjoyed but for the negligence of the defendant": Athey v. Leonati, [1996 183 (SCC), [1996] 3 S.C.R. 458] at 468. Tort law is designed to compensate the injured and deter the tortfeasor: Dobson v. Dobson, 1999 698 (SCC), [1999] 2 S.C.R. 753 at 782.

[ 31 ] As Angers J.A. of the New Brunswick Court of Appeal observed in Bulmer v. Horsman, 1987 107 (NB CA), [1987] N.B.J. No. 818, 82 N.B.R. (2d) 107 (C.A.), at p. 113 N.B.R., the more weight one attaches to the failure to wear a seatbelt, the greater benefit there is to the person whose negligence caused the accident. He said:

The safety value of these precautions, although variable, is accepted. Generally, however, the failure to employ them does not contribute to the cause of an accident. Therefore to reduce the amount of damages for such a failure in effect benefits the real tortfeasor, the person whose fault caused the accident in the first place. Secondly, it has the effect of punishing by a civil remedy the failure to comply with at most, a statutory duty which has nothing to do with the cause of the accident.

[ 32 ] No answer to the question of how the defendant's negligence and the plaintiff's contributory negligence should be balanced can be demonstrated to be correct. To what extent should a plaintiff, even one who could have averted all injuries by wearing a seatbelt, bear a loss that arises out of an accident caused by the defendant's negligence? To what extent should a defendant who has caused an accident be held responsible for injuries that the plaintiff could have avoided by wearing a seatbelt? Even though these are questions of fact for the jury, policy considerations are involved. Persons using the highways must be deterred from causing accidents by driving negligently and also be encouraged to wear seat belts to protect themselves from the ever-present risk of accident while travelling in an automobile. In answering these questions of fact, the jury must apply the proper legal standards as explained by the trial judge so that the law is fair in its general application and the same standards are appli ed consistently in all cases.

[ 33 ] There is now a great deal of judicial experience in considering the plaintiff's share of responsibility for damages that could have been prevented by wearing a seatbelt, and a definite and firm range of what is considered appropriate has been developed. In Galaske v. O'Donnell, 1994 128 (SCC), [1994] 1 S.C.R. 670, [1994] S.C.J. No. 28, at p. 682 S.C.R., Cory J. reviewed cases involving contributory negligence for failing to wear a seatbelt, and observed that:

The courts in this country have consistently deducted from 5 to 25 percent from claims for damages for personal injury on the grounds that the victims [page152] were contributorily negligent for not wearing their seat belts. This has been done whenever it has been demonstrated that the injuries would have been reduced if the belts had in fact been worn.

[ 34 ] Freeman J.A. of the Nova Scotia Court of Appeal, in Fowler v. Schneider National Carriers Ltd., 2001 NSCA 55, [2001] N.S.J. No. 123, 193 N.S.R. (2d) 206 (C.A.), at p. 219 N.S.R. listed the cases Cory J. relied on to make this statement and added a notation to show the apportionment of contributory fault in each case. I reproduce that list here:

Jackson v. Millar, 1971 593 (ON SC), [1972] 2 O.R. 197 (H.C.) - 10 per cent

Dodgson v. Topolinsky (1980), 1980 1892 (ON SC), 125 D.L.R. (3d) 177 (H.C.) - 15 per cent

Pugliese v. Macrillo Estate (1988), 1989 4184 (ON SC), 67 O.R. (2d) 641 (H.C.) - 20 per cent (includes other factors.)

Thurmeier v. Bray (1990), 1990 7363 (SK QB), 83 Sask. R. 183 (Q.B.) - 15 per cent

Ohlheiser v. Cummings, 1979 2163 (SK QB), [1979] 6 W.W.R. 282; 1979 2342 (SK QB), 4 Sask. R. 402 (Q.B.) - 25 per cent

Keller v. Kautz (1982), 1982 2655 (SK QB), 20 Sask. R. 420 (Q.B.) - 15 per cent

Rinas v. Regina (City) and Bidochka Estate (1983), 1983 2282 (SK QB), 26 Sask. R. 132 (Q.B.) - 25 per cent

Berube v. Vanest, [1991] O.J. No. 1633 (Gen. Div.) - 15 per cent

Schon v. Hodgins, [1988] O.J. No. 743 (Dist. Ct.) - 20 per cent (other factors present.)

Gervais v. Richard (1984), 1984 1951 (ON SC), 48 O.R. (2d) 191 (H.C.) - 20 per cent (plus a further percentage for other factors.)

Stamp v. Ontario (1984), 1984 1947 (ON CA), 47 O.R. (2d) 214 (C.A.) - 15 per cent

Beaver v. Crowe (1974), 1974 1313 (NS SC), 18 N.S.R. (2d) 562; 20 A.P.R. 562 (T.D.) - 0 per cent

Wallace v. Berrigan (1988), 1988 9677 (NS CA), 82 N.S.R. (2d) 395; 207 A.P.R. 395; 1988 5728 (NS SC), 47 D.L.R. (4th) 752 (A.D.) - 20 per cent

Holstein v. Berzolla, 1981 2213 (SK QB), [1981] 4 W.W.R. 159; Sask. R. 242 (Q.B.) - 15 per cent

Ducharme and Holben v. Davies and Rogoschewsky (1981), 1981 2156 (SK QB), 12 Sask. R. 137 (Q.B.), affd 1983 2310 (SK CA), [1984] 1 W.W.R. 699; 1983 2310 (SK CA), 29 Sask. R. 54 (C.A.) - 15 per cent

Shaw Estate and Shaw v. Roemer and Smith Transport Co. (1982), 1982 3340 (NS CA), 51 N.S.R. (2d) 229; 102 A.P.R. 229 (C.A.) - 10 per cent

Earl v. Bourdon (1975), 1975 1082 (BC SC), 65 D.L.R. (3d) 646 (B.C.S.C.) - 25 per cent

Gagnon v. Beaulieu, 1976 1565 (BC SC), [1977] 1 W.W.R. 702 (B.C.S.C.) - 25 per cent

Aujla v. Christensen, [1992] B.C.J. No. 860 (S.C.) - 25 per cent

Pharness v. Wallace, [1987] B.C.J. No. 2393 (S.C.), affd [1989] B.C.J. No. 2112 (C.A.) - 15 per cent (plus 35 per cent for mixing "speed, beer and a car with defective brakes"). [page153]

[ 35 ] The proposition that contributory negligence, solely for failing to wear a seatbelt, should not exceed 25 per cent can be traced to the decision of Lord Denning in Froom v. Butcher, [1975] 3 All E. R. 520, [1975] 3 W.L.R. 379 (C.A.), the leading English authority on the seatbelt defence. In Froom, Lord Denning suggested that the appropriate apportionment for contributory negligence should normally be 15 per cent where failing to wear a seatbelt made a considerable difference in the severity of the injuries suffered by the plaintiff, 0 per cent where it would have made no difference, and 25 per cent where wearing a seatbelt would have prevented the plaintiff's injuries altogether. Lord Denning reasoned that an absolute maximum of 25 per cent was a fair result because the failure to wear a seatbelt bears a different relationship to the injuries suffered than the negligence that caused the accident. He said at p. 527 All E.R.:

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 seatbelt, the injured person must bear some share.

[ 36 ] Lord Denning's judgment in Froom has been cited consistently in Canadian cases. Canadian courts have adopted his view that the negligence of the defendant in the operation of the vehicle is the cause of the accident and the primary cause of the injuries suffered by the plaintiff, and that the defendant should bear the greater share of the responsibility. Canadian courts generally, however, have not expressed approval of the three-level framework Lord Denning suggested [See Note 1 at the end of the document].

[ 37 ] In Heeney v. Best (1979), 1979 2084 (ON CA), 28 O.R. (2d) 71, 108 D.L.R. (3d) 366 (C.A.), this court referred to Lord Denning's reasoning that led him to adopt a cap of 25 per cent in seatbelt cases. In that case, the defendants drove their truck into some hydroelectric wires and caused a power failure in the plaintiff's barn where he was raising chickens. The lack of electricity disrupted the supply of oxygen to the barn. When the power failure was discovered some hours later, the chickens were dead. The plaintiff had an alarm to alert him to a power failure, but he did not have it activated at the time of the incident. The evidence was clear that had the alarm been in operation, the chickens would have been saved. The trial [page154] judge found that the defendants had been negligent and the plaintiff had been contributorily negligent. Because he could not ascertain their relative degrees of fault, he found them equally responsible and gave judgment for one half of the damages.

[ 38 ] On appeal, MacKinnon A.C.J.O. compared the plaintiff's contributory negligence to that of not wearing a seatbelt. At p. 76 O.R., he said:

The greater fault was clearly that of the respondent. The sole cause of the interruption of power was the negligence of the respondent's driver. No negligence of the appellant contributed to that interruption. The appellant's position is somewhat analogous to that of an innocent motorist or motorcyclist (innocent in relation to the collision, that is) who, while without a seat-belt or helmet, is struck and injured by a negligent driver, where it is established that a seat-belt or helmet would have prevented some or all of the injuries suffered.

[ 39 ] He then observed, at p. 76 O.R., that the plaintiff's "negligence only contributed to the damages he suffered, the respondent being wholly to blame for the negligent act which set in train the events that caused the ultimate injury or damage to the appellant".

[ 40 ] MacKinnon A.C.J.O. assessed the degree of fault of the plaintiff at 25 per cent and that of the defendants at 75 per cent, and supported his conclusion by referring to Lord Denning's reasons in Froom at some length. He said at p. 76 O.R.:

... I receive some comfort and support from the words of Lord Denning, M.R., speaking for the Court in Froom et al. v. Butcher, [1975] 3 All E.R. 520. There the plaintiff's car was involved in a collision with a car driven by the defendant. The accident was wholly attributable to the negligence of the defendant. The plaintiff was not wearing a seat-belt at the time and he suffered injuries to his head and chest which could have been avoided if he had been wearing his seat-belt. The trial Judge held that the plaintiff was not guilty of contributory negligence in failing to wear his seat-belt.

After reviewing a number of "seat-belt" decisions, Lord Denning, M.R., said the following (pp. 527-8):

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. But how much should this be? Is it proper to enquire whether the driver was grossly negligent or only slightly negligent? or whether the failure to wear a seat belt was entirely inexcusable or almost forgivable? If such an enquiry could easily be undertaken, it might be as well to do it. In Davies v Swan Motor Co (Swansea) Ltd., [1975] 1 All ER at 632, [1949] 2 KB at 326, we said that consideration should be given not only to the causative potency of a particular factor, but also its blameworthiness. But we live in a practical world. In most of these cases the liability of the driver is admitted; the [page155] failure to wear a seat belt is admitted; the only questi on is: what damages should be payable? This question should not be prolonged by an expensive enquiry into the degree of blameworthiness on either side, which would be hotly disputed. Suffice it to assess a share of responsibility which will be just and equitable in the great majority of cases.

Sometimes the evidence will show that the failure made no difference. The damage would have been the same, even if a seat belt had been worn. In such cases the damages should not be reduced at all. At other times the evidence will show that the failure made all the difference. The damage would have been prevented altogether if a seat belt had been worn. In such cases I would suggest that the damages should be reduced by 25 per cent.

As I have stated, the same reasoning is applicable to the facts of this case and an appropriate division of liability is 25/75 in favour of the appellant.

[ 41 ] It is important to remember that the evidence in Heeney established that all the chickens could have been saved had the plaintiff had his alarm in operation. Yet, MacKinnon A.C.J.O. found that the plaintiff's damages should be reduced by only 25 per cent. In so concluding, he said that the reasoning of Lord Denning in Froom "... is applicable to the facts of this case" [p. 77 O.R.]. The equivalent seatbelt case would be one where the evidence established that all of the plaintiff's injuries could have been prevented by the use of a seatbelt.

[ 42 ] It must be noted that MacKinnon A.C.J.O. did not quote that part of Lord Denning's reasons that suggested a standard assessment of 15 per cent contributory negligence when the failure to wear a seatbelt would have made a considerable difference to the damage suffered. Instead, McKinnon A.C.J.O. quoted only the passage that suggested that the assessment should be 0 per cent when the evidence was that none of the injuries would have been prevented by wearing a seatbelt, and should be 25 per cent when the evidence established that all the injuries would have been prevented by wearing a seatbelt.

[ 43 ] Heeney was relied on by Wilkins J. in Brough v. Templeton, [1997] O.J. No. 218, 23 O.T.C. 333 (Gen. Div.) and Labrosse J. in Dodgson v. Topolinsky (1980), 1980 1892 (ON SC), 33 O.R. (2d) 585, 125 D.L.R. (3d) 177 (H.C.J.).

[ 44 ] While the remarks of MacKinnon A.C.J.O. in Heeney about seatbelts were dicta, they, together with the firm range that has subsequently developed, confirm my conclusion that, in striking the balance between the defendant's negligence and the plaintiff's failure to wear a seatbelt, an apportionment in excess of 25 per cent for contributory negligence is unreasonable. I conclude that an assessment of 25 per cent contributory negligence is appropriate in a case analogous to Heeney, that is, where the evidence establishes that all the damages could have been [page156] avoided by the plaintiff's failure to wear a seatbelt. In my view, there is no reason to leave open the possibility that a greater apportionment might be appropriate in a rare case. There is no case where more than 100 per cent of the damages could have been prevented by the plaintiff wearing a seatbelt.

[ 45 ] I would conclude that the jury in this case, which returned a verdict of 35 per cent contributory negligence after being instructed that "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; that is, between 5 per cent and 10 per cent", acted unreasonably. In the circumstances, I would assess the appropriate level of contributory negligence.

Contributory negligence in this case

[ 46 ] In assessing the appropriate level of contributory negligence, this court should defer to the findings of fact underlying a jury's award. In this case, I infer that the jury found as a fact that Ms. Snushall was seated in the front passenger seat that had the shoulder harness available and also decided that a reasonably prudent person would have worn the available non-retracting shoulder harness. I consider the following evidence especially pertinent.

[ 47 ] First, Ms. Snushall complied with the legislatively defined standard of care for an occupant of the car in which she was riding. Mr. Fulsang's car was older, and she was legally required to wear the lap belt but not the shoulder belt. While this does not absolve her of contributory negligence, it is a relevant factor in locating her degree of fault within the available range.

[ 48 ] Second, the evidence was that people tended not to properly wear the available type of shoulder harness. It did not retract and, if worn properly, was uncomfortable and prevented the passenger from moving. The protection of the harness, if worn in the usual improper manner, would have been reduced.

[ 49 ] Third, the evidence did not establish that wearing the shoulder harness would have prevented all Ms. Snushall's injuries. It was not clear that her head injury was caused by impacting the interior of the car. Even if she had worn the harness, her head would have been subjected to rapid deceleration forces.

[ 50 ] In all the circumstances, I consider that the proper apportionment of Ms. Snushall's contributory negligence is 5 per cent.

The charge to the jury

[ 51 ] In my view, the trial judge's instructions to the jury, while in accordance with the standard jury charge, can be improved. [page157] The instruction that "the percentage of blame for the omission to wear a shoulder belt will depend on the extent you are satisfied this failure caused or contributed to her injuries" may have misled the jury into thinking its task was to assess the extent of the injuries that might have been prevented by the shoulder belt. In this case, I surmise that the jury must have concluded that wearing the shoulder harness would have prevented 35 per cent of Ms. Snushall's injuries. The record discloses no other basis for the jury's conclusion. As I have indicated, it is noteworthy that even counsel for the respondent asked the jury to find a lesser degree of contributory negligence.

[ 52 ] Rather than referring to the failure to wear a seatbelt as "causing or contributing" to the injuries, it would be better to instruct the jury that the defendant's negligence, if such negligence is found, is the sole cause of all the injuries, but that the law allows some reduction of the plaintiff's damages if the plaintiff has failed to take reasonable precautions to protect himself or herself from the consequences of the defendant's negligence. The jury's task is to decide on the amount of the reduction considering, as one factor, the extent by which the damages might have been prevented, but keeping in mind that the defendant's negligence caused the accident and was the prime cause of all the damage.

[ 53 ] The trial judge described the range of contributory negligence in seatbelt cases that has evolved as the "usual range" and broadly hinted that the award in this case should be in the lower portion of the range. However, she told the jury "you are not bound by this range". In my view, the jury is bound to return an award within a range that is reasonable and should be so instructed. For example, even in a case where the evidence establishes that 100 per cent 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 per cent. The defendant, as the tortfeasor, must bear most of the responsibility.

[ 54 ] It would be preferable to instruct the jury that, where contributory negligence is found only for not wearing a seatbelt, its award should fall within a range of 0 per cent to 25 per cent; that the upper limit of the range, that is 25 per cent, is available only in those cases where the jury is satisfied that substantially all the damages could have been prevented by wearing a seatbelt; and that, where the evidence does not establish that all the injuries would have been effectively prevented, the allocation should be less. The trial judge's comment that most cases fall into the lower end of the range, that is between 5 per cent and 10 per cent, is useful additional guidance for the jury. [page158]

Conclusion

[ 55 ] For the foregoing reasons, I would dismiss Mr. Vetzal's appeal and fix costs on the partial indemnity scale against him and in favour of Mr. Fulsang, in the amount of $10,000, inclusive of disbursements and GST.

[ 56 ] I would allow the appeal of Ms. Snushall and reduce the assessment of her contributory negligence to 5 per cent. I would award costs on the partial indemnity scale in her favour, fixed in the amount of $15,000, inclusive of disbursements and GST to be paid by Mr. Fulsang.

Appeal from apportionment of liability dismissed; appeal from assessment of contributory negligence allowed.

Notes

Note 1: Two notable exceptions are Fowler v. Schneider National Carriers Ltd., supra, and Bulner v. Horsman, supra. Newfoundland and New Brunswick have amended their insurance acts to deal specifically with the issue of apportionment of liability in seat belt cases: R.S.N.L. 1990, c. A-22, s. 28.1; S.N.B. 1996, c. 55, s. 265.2.