Contributory Negligence: When ICBC blames the accident victim (Video Blog)

Why does ICBC often blame the accident victim?

A concern that some people have after being in a car accident is being found at fault, or partially at fault, for their accident.  Sometimes, fault lies with multiple parties.  A common approach used by ICBC and injury defence lawyers is to try to avoid 100 percent of responsibility for the injuries sustained by saying that the injuries the victim has suffered were caused by the victim’s own negligence.  This is called “contributory negligence” and means that accident victim’s actions, or inactions, may have contributed to the cause of the accident, and therefore the injuries suffered.

Contributory Negligence: What does it mean?

To rely on this defence, ICBC or a defendant in a personal injury trial must show that the accident victim acted in a manner that was not to the standard of how a reasonable person in the same circumstances would act.  For example, another driver may have rear-ended the accident victim and be at fault for doing so, but the other driver might allege you sat at a green light while you finished a text, and therefore were unreasonably blocking the expected flow of traffic.

If the accident is reasonably foreseeable, and a choice was made to ignore the risk and the accident victim’s own behavior contributed to the cause of the accident, the accident victim can be held contributorily negligent for their own injuries.

However, the law does not require that a person act perfectly.  It is not enough that an accident or injury was foreseeable in hindsight.  For ICBC or a defendant to rely on contributory negligence, they must show that the level of care exercised was less than what a reasonably sensible person would have done in similar circumstances.

In the example I mentioned above, obviously a person should not be texting at a stop light.  Indeed, no driver should be handling their electronic devices while operating a vehicle at all.  It is likely that a person doing so might be found to be contributorily negligent.

What happens to the personal injury claim if the accident victim is found contributorily negligent?

The law regarding contributory negligence in BC comes partly from the BC Negligence Act.  This Act states that each party is responsible for damages in proportion to their degree of fault for the accident and the resulting injuries.

The Act also provides that if it is not possible to establish fault on any party, liability (or responsibility for the accident) will be divided equally, that is, 50/50.   If three cars are involved in an accident and the relative fault of each driver cannot be determined, the court would split fault in thirds, if four, then it would be quarters.

To illustrate these situations, imagine a scenario where a person turns left at an early yellow light and collides with the ongoing car.  At trial, the judge finds the accident victim is entitled to $100,000 for the injuries and lost wages sustained, but the judge also finds that the accident victim is 25 percent at fault for causing the accident.  In this case the judge would reduce the award by 25 percent.  This is the practical effect of contributory negligence, it reduces the amount of the damages the other parties are responsible to pay to the victim of the accident.

Whether being blamed or not, seeking legal advice is wise

If a person is injured, whether or not they are being blamed by another person for the cause of the accident, seek the advice of a lawyer.  Many, including our firm, League and Williams, will give a free consultation.

I hope you have learned something about the law from this blog.

Please feel free to like us on Facebook, follow us on Twitter and subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law.  If you need legal advice, please contact us by email, info@leaguelaw.com or by phone, 250-888-0002.  We serve clients across BC and are experts in personal injury law, estate disputes and marine law.  Our firm has been rated as one of the three best injury law firms in Victoria, BC by Three Best Rated®.