In the case of a motor vehicle accident legal claim, it is very common for the defendant to allege that the injured party (the plaintiff) contributed to the occurrence or the seriousness of the accident. This is referred to as contributory negligence and it is an essential element to consider when determining the fault in a motor vehicle accident claim.
WHAT IS CONTRIBUTORY NEGLIGENCE?
Contributory negligence is based on the principle that all individuals have a duty to take reasonable care for their own safety. If an injured party has exercised unreasonable conduct, he/she is considered to have contributed to his/her injuries and is contributorily negligent.
In Alberta, the legislation regarding contributory negligence is found in the Contributory Negligence Act. Section 1 sets out that in the event that multiple individuals contribute to loss or damage, the responsibility for rectifying said damage will be apportioned between the individuals based on their relative degrees of fault.
The Contributory Negligence Act also set out that the court is responsible for determining the parties’ relative degrees of fault. If it is impossible to do so, the Court will apportion liability equally between the parties.
The leading case in Alberta which provides guidance on the application of contributory negligence is the 2002 case of Heller v. Martens. This case establishes that to prove the plaintiff was contributorily negligence, the defendant must show:
- That the plaintiff acted negligently; and
- That the plaintiff’s negligent behaviour caused or contributed to the cause of the plaintiff’s loss or injuries.
If the defendant can establish that the plaintiff was contributorily negligent, the court will then apportion liability based on the parties’ comparative blameworthiness. If an injured party is found contributorily negligent, his/her damages award may be reduced by the degree to which he/she is found at fault for his/her own injuries.
COMMON EXAMPLES OF CONTRIBUTORY NEGLIGENCE IN MOTOR VEHICLE CLAIMS
The following are examples of situations where contributory negligence comes into play in a motor vehicle claim.
- In a car accident, if the injured party was not wearing his/her seatbelt and this contributed to the severity of the injuries suffered.
- If a pedestrian is struck by a motor vehicle who is driving too fast for the road conditions, the pedestrian may be found to have contributed to his/her injuries if it can be proven that the pedestrian failed to check traffic before crossing
- If a car accident occurs and the injured party was driving a vehicle while on their phone or otherwise distracted.
THE CASE OF PARMAR v. RINK
The case of Parmar v. Rink is a good example of how contributory negligence comes into play in a motor vehicle legal claim.
The motor vehicle accident occurred in a marked crosswalk in a rural area. At the time of the accident, it was early evening, dark and raining hard. Sarbjit Kaur Parmar (“Parmar”) was wearing dark clothing while walking with her two children on December 17, 2015. Harold Rink (“Rink”) was driving on his way home from a dinner with friends.
As a result of the accident, Parmar suffered a mild traumatic brain injury, broken left wrist, broken left shoulder and a broken right leg.
Rink said that he first saw Parmar and her son when they were directly in front of his vehicle, only a split second before his vehicle hit them. Parmar was thrown about 14 metres. According to accident reconstruction evidence, Rink was travelling between 41 and 48 km/h at the time of the collision.
Parmar admitted that she determined that it was safe to cross the intersection although she did not know how far away Rink’s vehicle was and could not estimate his speed.
The trial judge determined that the driver was predominantly at fault for the accident. The judge found the driver was 75% responsible for the accident as he had failed to keep a proper look out and yield the right of way to the injured plaintiff. It was emphasized in the judge’s decision that the driver has a very high standard of care when approaching a marked crosswalk.
Based upon the trial evidence, the judge found that Parmar was 25% responsible for the accident, or contributorily negligence, as she admitted to seeing the car, but failed to discern how fast it was driving and how near it was approaching before proceeding to cross the street.
[T]he plaintiff in the circumstances of this case was entitled to assume that the defendant was going to obey the law and yield the right-of-way to her. Her right to rely on that assumption continued until such time as she knew, or ought to have known, that the defendant was not going to grant her the right-of-way, whereupon the plaintiff’s obligation to avoid injury to herself superseded her right to exercise her right-of-way.
As a result, she had a duty to wait until she could make an assessment of the speed of the oncoming vehicle, and to ensure that the driver saw her and her children and was slowing.
Claims that involve contributory negligence can be complex, however, an experienced personal injury lawyer can help assess the situation and advocate on behalf of the injured party to minimize the effect of a finding of contributory negligence.
If you or a loved one have been involved in collision caused by the negligent actions of a third party driver and have suffered severe injuries it is important that you contact an experienced personal injury lawyer today. Cuming & Gillespie Lawyers can help evaluate your specific case to determine whether you have a valid personal injury claim. Please contact the experienced and award winning lawyers at Cuming & Gillespie Lawyers online or at 403-571-0555 for a free consultation to determine how we can help you recover compensation for your injuries.