Unbuckling The Law Of Contributory Negligence

In Wormald v. Chiarot, 2016 BCCA 415, the British Columbia Court of Appeal reviewed the law of contributory negligence and, in particular, the significance of proving that a plaintiff's failure to take reasonable care was causally connected to the loss sustained.

In Wormald, the plaintiff was injured in a motor vehicle accident while sitting in the back hatch area of a vehicle where no seatbelts were available. The trial judge considered a number of factors in relation to the plaintiff's contributory negligence, specifically:

The driver had a novice license; The driver had been drinking contrary to the restrictions of the novice license (although she was not intoxicated); The vehicle had more occupants than it was designed to carry; The plaintiff sat in an area where she knew there were no seatbelts; Over the course of the night there were several opportunities for the plaintiff to remove herself from the situation, but she did not do so; and The other occupants planned to throw eggs at people from the moving vehicle. Ultimately, the trial judge found that the plaintiff was 40% contributorily negligent and reduced her award of damages accordingly. On appeal, the Court considered whether the finding of contributory negligence was reasonable.

The plaintiff argued that the trial judge had erred in finding contributory negligence because the accident was caused solely by excessive speed and not any of the other factors referred to by the trial judge. At paragraphs 14 and 15, the court provided the following helpful summary of the law on contributorily negligence:

"The analysis for contributory negligence involves two considerations: (1) whether the plaintiff failed to take reasonable care in her own interests; and (2) if so, whether that failure was causally connected to the loss she sustained: Enviro West Inc. v. Copper Mountain Mining Corporations, 2012 BCCA 23 at para. 37."

"To satisfy the requirement of a causal connection between the plaintiff's breach of the standard of care and the loss sustained, the defendant must establish more than that but for her negligence, the damage would have been avoided. The plaintiff's conduct must be a "proximate cause" of the loss in that the loss results from the type of risk to which the appellant exposed herself: Bevilaqua v. Altenkirk, 2004 BCSC 945 at paras. 39 - 43 (per Groberman J., as he then was). In other words, the plaintiff's carelessness must relate to the risk that made the actual harm which...