“Negligence” means harm caused by someone’s failure to exercise the level of care that a reasonably prudent person would exercise in similar circumstances. In order to establish negligence in a personal injury case, you must demonstrate that someone acted in a careless way and that person’s action or inaction resulted in the your injury. To be successful, you must demonstrate that the defendant
- Owed you a certain level of care in the particular circumstance (called a “duty of care”)
- Breached that duty of care through his or her actions
- Caused the accident that resulted in your personal injury.
A simple example of negligence would be when somebody opens his or her car door into passing traffic. The party who opened the door will almost always be at fault because drivers owe a duty of care to others on the road who could not anticipate that they would open a door. As per the Motor Vehicle Act, drivers have a legal duty to pay attention to the traffic before opening a door. They also have a duty to follow traffic at a safe distance, to drive at a reasonable speed and take care not to injure others on the road.
What is contributory negligence?
Sometimes injuries can be caused by more than one person’s negligence. It is possible that a person, though not the primary cause of an injury (or automobile accident) still contributed to the event. If a defendant can prove that someone else contributed to the plaintiff’s injury (including the plaintiff), they may not be found wholly liable. In BC, the apportionment of liability under the Negligence Act is based on “comparative blameworthiness.” It is a gauge of the amount by which each party who could be said to be liable for the incident in question fell short of the standard of care that was required of that person in all the circumstances.” There are many circumstances in which a plaintiff in a motor vehicle action may be found contributorily negligent. Previous cases have determined some typical examples including:
- Voluntarily riding with an impaired driver
- Voluntarily riding in unsafe circumstances
- Failure to wear a seatbelt or other protective clothing
- The failure of a pedestrian to take care of their own safety
What are some other possible defences to negligence actions?
While a finding of contributory negligence will not vindicate the defendant in full, there are some defences that, if successful, would result in a finding in favour of the defendant. For example,
Volenti non fit injura
Translated, this basically means “no injury can be done to a willing person.” In other words, a plaintiff cannot recover from a defendant where the plaintiff knows and has consented to the risk of harm. This defence is limited in BC because of the apportionment legislation discussed above. However, some courts have applied the defence in cases where the parties had consumed alcohol together knowing that one of them would have to drive home.
Ex Turpi Causa Non Oritur Actio
This essentially means “no right of action arises from an illegal or moral cause.” While not a traditional defence, it will bar a plaintiff’s claim if the plaintiff was engaged in criminal activity at the time of the injury. For example, say Jimmy robbed a bank and was then picked up by Roger, who drove the getaway car. Roger crashed into the side of a building when he was speeding to get away from the cops and Jimmy was seriously injured. Notwithstanding his injury, it is unlikely that Jimmy could recover damages for his injuries from Roger since they were both in the process of committing a crime. While this defence is often attempted in drinking and driving cases, it is rarely successful.
The defence of inevitable accident places an onus on the defendant to prove that the accident could not have been prevented by the exercise of reasonable care. It most commonly arises when a driver loses consciousness while at the wheel or unexpectedly encounters black ice or stray animals on the highway. When this defence is raised, the question is whether the defendant could have done any thing to avoid the accident. The defendant will bear the burden of proving that he or she exercised reasonable care. So for example, if Mary loses consciousness while driving, the question will be whether she had any warning signs of health problems that she ignored.
What about winter driving conditions?
This defence of inevitable accident is often invoked in winter driving conditions. However, if there is evidence that the defendant know, or ought reasonably to have anticipated, the presence of the conditions in question, the defence will usually fail. For example, in Redlack v. Vekved, Justice Southin for the British Columbia Court maintained that a “prudent driver in such circumstances must always bear in mind the possibility of icy patches and drive within his or her own competence, and the capacity of her vehicle to cope with such patches.” Thus if Randy was driving her car 100 km/h during a snowstorm and rear-ended Becky she likely could not use the defence of inevitable accident since she could have tried to mitigate the conditions by driving slower.
 Motor Vehicle Act, RSBC 1996, c 318, s. 203.
 Ibid., See generally.
 Negligence Act, R.S.B.C. 1996, c. 333.
 Cempel v. Harrison Hot Springs Hotel Ltd. (1997), 43 B.C.L.R. (3d) 219.
Michael W. Biggs [et al.] British Columbia Motor Vehicle Accident Claims Practice Manual ( Vancouver : Continuing Legal Education Society of British Columbia, 2011) Looseleaf, 10-6.
 Apsassin v. Gauthier (1991) B.C.W.L.D. 2187 (S.C.). Book, 10-29.
 Biggs, supra at 10-29.
 Ibid., 10-35.
 Ibid., 10-36.
 Redlack v. Vekved (1996), 82 B.C.A.C. 313 (C.A.).