By Mel Chaudhary
If you are injured as a result of a motor vehicle accident in BC, but you were not wearing your seatbelt when the accident occurred, can you still make an ICBC claim? The lawyers at Simspon, Thomas & Associates are frequently askedthis. The answer is yes. In fact, you may still be able to make two types of ICBC claims even if you were not wearing a seatbelt at the time of the accident.
Two types of ICBC claims
When you are injured in a BC motor vehicle accident, you generally have two claims:
- a tort claim against whoever caused the accident; and
- a no-fault benefit claim against ICBC (also referred to as a Part 7 benefit claim).
Why failure to wear a seatbelt is not relevant to Part 7 benefit claim
Generally speaking, Part 7 benefits are available to a person who is injured as a result of a BC motor vehicle accident, regardless of who is at fault for the accident (which is why Part 7 benefits are also known as “No-Fault” benefits). If you qualify for this type of benefit claim, it does not matter if you were not wearing a seatbelt because Part 7 benefits are paid regardless of fault.
Failure to wear a seatbelt does not preclude a tort claim
You are still able to commence a tort claim for personal injury compensation even if you were not wearing a seatbelt when the motor vehicle accident occurred. However, if you were not wearing a seatbelt, ICBC will raise the defence of contributory negligence, arguing that you failed to take reasonable care for your own safety by not wearing a seatbelt (or by accepting a ride in a vehicle not equipped with seatbelts). It is important to emphasize that contributory negligence is not established by the simple fact that you were not wearing a seatbelt. The defendant must prove that it was unreasonable in the circumstances for you to not wear a seatbelt, and that your injuries would have been prevented or lessened had you been wearing a seat belt (for example, by way of an expert report that provides an opinion as to the effect of not wearing a seatbelt on your injuries). If the defendant does not provide such evidence, the defence of contributory negligence will not succeed, and your personal injury compensation will not be reduced for failing to wear or properly use a seatbelt.
Free legal advice
If you have been injured in a motor vehicle accident but were not wearing a seatbelt when the collision occurred, it is still possible to bring a Part 7 claim and a tort claim for personal injury compensation. Contact Simpson, Thomas & Associates to schedule a free initial consultation with one of our team of experienced personal injury lawyers in Surrey (Vancouver, Delta, and Burnaby office appointments are available). We can guide you through the Part 7 claims process and we have successfully opposed the defence of contributory negligence in countless cases for our clients. Call us on 604-689-8888 to schedule your free consultation.
