COLUMN: Seatbelt use considered in an injury claim

If you are injured in a car accident as a result of the fault of another driver, you’re entitled to compensation ...

  • Dec. 17, 2013 2:00 p.m.

Legal Ease by Doug Lester

If you are injured in a car accident as a result of the fault of another driver, you’re entitled to compensation for any injuries you sustained for pain and suffering, and other costs such as out-of-pocket expenses, loss of earnings and earning capacity, medical expenses, and sometimes even care and assistance provided to you for domestic chores performed by friends and family on your behalf.

Note, however, that you’re entitled to be compensated, as a result of “the fault of another driver.” If you are wholly or partially at fault for your injuries, then you have no right to go after someone else for compensation for your injuries.

Fault does not always include the actions you may have committed as the driver of a vehicle. Fault can include other actions or omissions, such as your failure to wear a seatbelt or even to have your seatbelt properly fastened.

The law in this province requires drivers and passengers to wear seatbelts when riding in a motor vehicle. If you fail to do so and you are caught, you can be ticketed. That’s not such a big deal; you pay a small fine. The consequences are much more severe if you are in an accident.

What if you are seriously injured because another driver runs a red light? It’s not your fault. It’s 100 per cent the other guy’s fault. But if you were not wearing your seatbelt, and if the insurance company can show that your injuries could have been prevented or would have been less severe if you had been wearing a properly fastened seatbelt, the law will not allow you to recover 100 per cent of your losses.

So, if your claim was $10,000, but the insurance company is able to establish that your injuries could have been 25 per cent reduced if you had been wearing a seatbelt, your $10,000 claim becomes a claim worth only $7,500. That is, in effect, a $2,500 penalty because of your inattention.

One of the first questions an insurance adjuster will ask you when you have an injury claim is, “were you wearing a seatbelt?”

I’m sure now you’ll understand why they ask that question. Regardless of your answer, modern cars are equipped with electronic sensors, which can often determine whether a seatbelt was being worn at the time of an accident.

There are also other techniques that are regularly employed by accident reconstruction experts, hired by insurance companies, to tell if a person was or was not wearing a seatbelt.

The bottom line is, if you’re not wearing a seatbelt at the time of an accident, chances are your claim will be reduced and you’re not going to be able to hide the fact that you could have, but failed to, properly fasten your seatbelt.

Always buckle up!

Doug is a partner with RDM Lawyers. He practises in the areas of personal injury law and labour and employment law.  If you have questions or comments about this article, please email legalease@abbynews.com.

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