Ontario law requires everyone in a motor vehicle to wear his or her seat belt. Adults who do not wear their seat belts are subject to charges and fines under the Highway Traffic Act. If a police officer catches a child not wearing his or her seat belt, the officer will charge the parent or the adult in the car. However, wearing seat belts is about more than just obeying the law and avoiding a fine.
The fact is- wearing seat belts saves lives. Over many years, our law firm has handled cases for people that have been involved in serious car accidents. In an astute analysis of those cases, we have invariably encountered only a few rare cases where engineers came to the conclusion that wearing a seat belt would not have made a difference. Nevertheless, in the vast majority of cases, the science is clear that wearing a seat belt either saved a life or, at a minimum, lessened the injury sustained.
Another reason why it makes sense to buckle up every time you get in the car is the fact that failure to do so may negatively impact your claim for damages for your personal injury. To be clear, if you don’t wear your seat belt you will still be entitled to compensation. This is because there are two types of damages that are available to people that are involved in car accidents.
The first type of damages is called ‘Statutory Accident Benefits’, which are also commonly referred to as ‘No-fault Benefits’. No-fault benefits get their name because they are available to everyone who was involved in a car accident regardless as to whether the person is at fault or not. In other words, you will generally get no-fault benefits in full even if you are not wearing a seat belt. That means that you will be entitled to make a claim for things like; part of your lost income (income replacement benefits), some of your ongoing medical expenses not covered by OHIP (medical / rehabilitation benefits), the cost of bringing in a person to assist you if you require help taking care of yourself (attendant care benefits), and, if required, funeral or death benefits.
Unfortunately, no-fault benefits have been continuously reduced by governments over the last 20 years to the point where they generally do not provide enough protection for injury victims in Ontario. For instance, medical coverage has been reduced from $1 million in 1992 to only $35,000 for the majority of accident victims today. Income replacement benefits are capped at $400 per week. So, no-fault benefits are generally, by themselves not enough to fairly compensate you if you been in a car accident.
So, what do you do? In Ontario, you can sue the person that was responsible for the car accident for additional compensation for pain-and-suffering, lost income, medical and rehabilitation expenses, out-of-pocket expenses, and other losses. However, when you sue the at fault driver fault -that is, who was to blame for the accident? - is a live issue.
Generally, if you are not wearing your seat belt when you’re in a car accident, you will be held partly responsible for your own injuries. This is because, in Ontario, we have a concept called ‘contributory negligence’ that allows the court to spread out, or portion, responsibility for an accident between multiple parties. How does this work? Well, if you are involved in a car accident and there is a dispute about liability – or who was at fault – the court will hear evidence from experts and police officers, and witnesses who will make legal findings as to who is responsible. If, for example, the other driver was found to be 75% responsible and the accident victim was found to be 25% responsible, the accident victim would receive only 75% of the damages awarded.
This is where wearing a seat belt comes into play. Not wearing a seat belt will almost certainly result in a finding of contributory negligence against the accident victim. The amount of this contributory negligence will depend upon the facts. In a couple of exceptional cases, damages have been reduced by as much as 25%. However, in the vast majority of cases, not wearing a seat belt has caused the accident victim between 5% and 15% of their claim. While this does not seem like a lot, in a serious or catastrophic case, even 10% or 15% contributory negligence can wind up costing you hundreds of thousands of dollars. It also should not be forgotten that the fact that wearing a seat belt in the first place might have reduced or eliminated the injury and allowed you to continue to live your life.
Insurance companies will argue the not wearing a seat belt is the primary cause of an accident victim’s injuries and will attempt to argue that the damages should be substantially reduced because of the failure to wear seat belts. Do not allow an insurance company to arbitrarily decide to reduce your damages claim significantly based on arbitrary considerations.
If the insurance defendant decides that they’re going to take an aggressive position with respect to contributory negligence, you and your lawyer need to get the proper evidence to respond. Generally, this will include hiring an engineer, conducting an accident reconstruction, obtaining close consideration of the medical evidence, and in some cases, relying upon witnesses to establish the mechanics of the injury.
It is important to remember that not wearing a seat belt will likely result in some reduction of your claim for damages arising out of car accident, but it will not eliminate your claim. In fact, in the vast majority of cases an accident victim should only be conceding 5% to 10% contributory negligence for not wearing a seat belt. This is why it is critical to speak to a lawyer immediately if you been in an accident when you’re not wearing a seat belt and have sustained serious injuries.
If you have been seriously injured in a car accident, call Rastin & Associates at 1-844-RASTIN1 for a free consultation.