All drivers and passengers must wear occupant restraints when traveling in a vehicle—it’s the law. There are exceptions, but they rarely apply to most car accident cases.
Alberta still allows you to sue the at-fault driver, but you can bet that driver’s insurance company will bring up the fact that you weren’t wearing a seatbelt. Alberta is a contributory negligence province, which means they can use your omission to reduce your award.
In the Canadian Supreme Court case: L’Heureux-Dubé, Gontheir, and Cory JJ, the court established that “a driver of a motor vehicle owes a duty of care to his passengers to take reasonable steps to prevent foreseeable injuries, and that duty of care extends to ensuring that passengers under 16 years of age wear their seatbelts. Passengers and drivers have a duty of care to ensure their own safety in a car by wearing seat belts, and a failure to do so will result in an assessment of contributory negligence.” See also: Galaske v. O’Donnell.
What is contributory negligence?
Alberta law acknowledges that few accidents are the fault of a single party alone. Often, both parties make mistakes that cause an accident to occur.
During a personal injury case, each party gets assigned a percentage of fault. The percentage could be 99% to 1%. It could be 50% and 50%.
Whatever percentage of fault you’re assigned is the percentage by which your award will be reduced. So if you are assigned 10% fault and have a $200,000 award, you’ll only take home $180,000.
When you fail to wear your seatbelt, you can expect your percentage of fault to be set relatively high. While your failure to wear your seatbelt did not contribute to the accident itself, it did contribute to your injury.
Wearing your seatbelt reduces your risk of death by up to 45% and cuts your risk of injury by up to 50%. Your injuries are far more severe if you don’t use occupant restraints. The other driver is not responsible for the portion of the injuries you brought upon yourself by ignoring this fairly basic principle.
Is it worth it to sue if you weren’t wearing a seatbelt?
It’s only possible to say with a full review of your specific case.
In general, courts consistently assign a contributory negligence percentage of 5% to 25% for failure to wear a seatbelt alone.
If failure to wear a seatbelt is the only issue with your case, it may still be worth it to sue. Remember, you may be assigned a higher fault percentage for other factors related to your case as well.
As your percentage draws close to 50% or higher, it sometimes stops making good financial sense to pursue a claim.
Ask an Attorney
Don’t make the decision on your own. Speak to a Merchant Law attorney today, and give us the opportunity to look at your case and tell you honestly what your specific situation might look like.