Daniel Fulsang v. Carol Snushall

(Ontario) (Civil) (By Leave)


Torts - Motor vehicles, Assessment.


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Torts - Motor Vehicles - Assessment - Apportionment for contributory negligence by injured party - Failure to wear seat belt - - Whether Court of Appeal erred in overturning apportionment for contributory negligence - Whether Court of Appeal erred by arbitrarily creating new policy and law that the upper limit of the range for contributory negligence for failure to wear a seatbelt is 25% and most cases fall between 5% and 10% - Whether the issue of a cap on contributory negligence for not wearing a seatbelt should be addressed by the Legislature - Whether an apportionment in excess of 25% for contributory negligence for failure to wear a seatbelt is unreasonable and ought not to be a possibility - Whether the Court of Appeal's decision is inconsistent with other judicial decisions - Whether the Court of Appeal determined that most cases fall into the lower end of the range without supporting evidence - Whether Court of Appeal erred with respect to appropriate jury instructions.

Daniel Fulsang drove his car into the rear of George Vetzal's car. Carol Snushall, a passenger in Fulsang's car, was injured. She was wearing a lap belt as required by statute. She was not wearing an optional shoulder belt available in Fulsang's car and she was not statutorily required to wear the optional shoulder belt. The jury apportioned contributory negligence to Snushall at 35%. The Court of Appeal lowered the apportionment to 5% and held that there should be an upper cap of 25% on apportionments to injured parties for contributory negligence by failure to wear a seat belt.