Ruling confirms passenger wasn’t contributorily negligent for not wearing seatbelt
The British Columbia Court of Appeal has reduced the award of damages to a taxi passenger injured during a vehicular accident by $350,000 upon finding an error in the trial judge’s assessment of loss of future earning capacity.
On Oct. 29, 2017, a vehicle struck a taxi from behind. The appellants in Chau v. Courchesne, 2026 BCCA 345, were the company that owned the vehicle and its employee who was driving it.
The respondent, who was then chief executive officer of the Canadian Dermatology Association, was a passenger in the taxi. She was not wearing a seatbelt at the time. She sustained physical, psychological, and cognitive injuries.
Supreme Court of British Columbia’s $3.75M award
On Nov. 9, 2023, a judge of the Supreme Court of British Columbia awarded damages of around $3.75 million. The trial judge found that:
- The accident caused a concussion or mild traumatic brain injury, which significantly affected the respondent’s personal and professional life
- The driver of the other vehicle was 100 percent responsible for the accident
- The respondent was not contributorily negligent for failing to wear an available seatbelt
British Columbia Court of Appeal partly grants appeal
The BC Court of Appeal allowed the appeal on the sole ground that the judge erred in assessing the award for loss of future earning capacity. Thus, the appeal court varied the trial order by reducing the lost future earning capacity award to $2.55 million from $2.9 million.
The appeal court dismissed the appellants’ other grounds of appeal and the respondent’s cross-appeal. The appeal court awarded the appellants the appeal and cross-appeal costs due to their substantial success.
Error regarding loss of future earning capacity
Regarding the assessment of lost future earning capacity, the BC Court of Appeal ruled that the judge erred by setting a higher base salary than the accepted amount of $200,000 per year, and by including the rejected assumption that the respondent would have earned a $230,000 base salary.
Upon considering this error, the appeal court set the total net present value of the loss before deductions at $3,182,453.19, reduced by 10 percent for contingencies and another 10 percent for residual earning capacity. The appeal court then rounded up $2,545,962.55 to $2.55 million.
The appeal court considered 10 percent as a reasonable general contingency reduction.
Contributory negligence finding affirmed
The BC Court of Appeal acknowledged the judge’s legal error in finding the seatbelt and headrest issues mutually exclusive. According to the appeal court, the judge incorrectly determined that treating the seatbelt instead of the headrest as the cause of injury would be speculative.
Despite the judge’s error, the appeal court ruled that the appellants failed to prove that the respondent was contributorily negligent, given the lack of evidence establishing on a balance of probabilities that her failure to wear a seatbelt caused her concussion or other injuries.
Other rejected arguments
The BC Court of Appeal disagreed with the parties’ other arguments upon finding no reviewable errors.
Regarding past loss of earning capacity, the appeal court found the judge entitled to set the respondent’s 2019 annual salary at $200,000, with a 2.5 percent cost-of-living increase.
As for future care costs, the appeal court found the judge entitled to determine that the respondent failed to prove that she required treatment for 30 years.
Lastly, the appeal court rejected the appellants’ argument that the respondent failed to mitigate her damages.
BC Court of Appeal’s prior motor vehicle accident cases
Here are some other BC Court of Appeal decisions involving injuries from vehicular accidents.
The appeal court issued an Aug. 21 decision awarding appeal costs to a woman who substantially succeeded in her appeal against a jury’s award of damages for her personal injuries arising from a motor vehicle collision.
In a negligence claim arising from a motor vehicle collision in Kelowna, the appeal court made a May 21 decision affirming a judge’s denial of the injured party’s claim for $312,000 in damages for lost future earning capacity.
In a vehicular accident case, the appeal court issued a May 20 decision raising the damages award by $760,796.19 upon setting aside a judge’s application of a 75 percent negative contingency deduction and replacing it with a 25 percent deduction.
Enjoy this story? Read the latest personal injury law news on the main page!
