Case: Wormald v. Chiarot, 2016 BCCA 415
Keywords: contributory negligence, proximate cause, injuries, motor vehicle
Sometimes injuries happen because a person is in the wrong place at the wrong time. Other times it isn’t bad luck and the person injured is to blame. That’s where contributory negligence comes in. In the present case, the Court of Appeal grappled with a situation where the plaintiff knowingly put herself in a dangerous situation and the Court ultimately decided she shouldn’t share in the fault for her resulting injuries.
Ms. Chiarot and Ms. Wormald were involved in a MVA. Ms. Chiarot, 17, was driving and Ms. Wormald, 15, was one of several passengers. The vehicle overturned and ended up in a ditch. There were no fatalities, but Ms. Wormald suffered lacerations and scarring to her leg, bruises, scrapes and cuts.
Ms. Wormald brought a claim for damages against Ms. Chiarot for the injuries suffered. The trial judge assessed damages at $8,500 for the lacerations, bruises, scrapes and cuts, but found Ms. Wormald 40% at fault on the basis she knew:
(a) Chiarot had a novice licence;
(b) Chiarot had been drinking, contrary to her novice licence;
(c) Chiarot had more passengers in the vehicle than was allowed by her novice licence;
(d) the vehicle had more occupants in it than it was designed to carry;
(e) over the course of the night in question, she had several opportunities to remove herself from the situation but did not do so;
(f) she sat in an area of the vehicle where she knew there were no seatbelts; and,
(g) the other occupants planned to throw eggs at people from the moving vehicle (with the reasonable expectation that the vehicle might be chased).
The main issue on appeal was whether the trial judge erred in finding Ms. Wormald contributed to her own loss. Ms. Wormald argued the trial judge used irrelevant considerations not linked to her injuries and that the accident was caused by excessive speed.
The Court of Appeal agreed and allowed the appeal. Since the harm was suffered due to speed and loss of control, Ms. Wormald could not have been apportioned any of the blame because she did not have control over either of these factors.
The Court of Appeal clearly explains the analysis for contributory negligence, which it defines as “a plaintiff’s failure to meet the standard of care to which he is required to conform for his own protection and which is a legally contributing cause, together with the defendant’s default, in bringing about his injury…” (para. 13). [Emphasis in original]
Citing Enviro West Inc. v. Copper Mountain Mining Corporation, 2012 BCCA 2, the Court of Appeal stated there are two considerations in deciding contributory negligence:
- whether the plaintiff failed to take reasonable care in her own interests; and
- if so, whether that failure was causally connected to the loss she sustained. (para. 14)
The Court of Appeal then went on to explain how these considerations are assessed:
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: … In other words, the plaintiff’s carelessness must relate to the risk that made the actual harm which occurred foreseeable…. (para. 15)
Following this approach, the Court carefully examined each factor relied upon by the trial judge and determined that none of them caused or exacerbated Ms. Wormald’s losses. The losses as found by the trial judge were solely a result of speeding and losing control.
The respondents argued that the mere fact Ms. Wormald participated as a passenger in the “joy ride” should result in a finding of contributory negligence because she failed to take due care. The Court dismissed this argument stating, “It can always be said that an accident could have been avoided by not getting in a vehicle. But the risk of an accident must be proximate, such as that posed by an obviously impaired driver, in order to justify a finding of contributory negligence.” (para 19)
In short, merely being on a joy ride is too vague a basis on which to find contributory negligence. Ms. Wormald would have likely suffered the harm despite all of the factors considered by the trial judge.
For contributory negligence, this decision highlights the importance of the trial judge connecting the plaintiff’s carelessness to the actual harm.
Counsel for the Appellant: Gary Jackson and Oana Burdett (Dinning Hunter Jackson Law, Victoria)
Counsel for the Respondents: Jeremy Martin and Trevor Morley (Carfa Lawton LLP, Victoria)
Supreme Advocacy would like to thank and acknowledge Alim Jessa, LL.B. with assistance in preparing this summary.