Tort Law: Negligence and Contributory Negligence

This document provides an overview of tort law, focusing on negligence and contributory negligence. It explains the principles and defenses involved in these cases, using the case study of Snushall v. Fulsang. The case involves a rear-end collision and the determination of contributory negligence based on the failure to wear a shoulder belt. The document also discusses the burden of proof, the role of the jury, and the range of contributory negligence for not wearing a seat belt.

Running head: TORT LAW
Tort Law
Name of the Student
Name of the University
Authors Note

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Snushall v. Fulsang, 2005 CanLII 34561 (ON CA)
Area of Law
Tort law: Negligence- Contributory negligence
Contributory negligence can be regarded as the defence to the claim of tort on the basis
of negligence1. The principle is that the injured or the aggrieved party or the plaintiff
has contributed to his injury or loss as a result of being negligent of the known and
obvious reasons. When it is compared with the negligence of the defendant,
contributory negligence extent can defeat the claim to recover damages or can even
reduce the reward amount. In order to claim the defence of contributory negligence,
the defendant has to prove that the plaintiff or the claimant, as the case may be, has
committed negligence. The burden of proof lies on the plaintiff to disprove his
negligence. The defence of contributory negligence often succeeds when other
defences do not succeed.
The defendant must show that the claimant has failed to ensure taking proper care in
such situation for her own safety and such failure to take the required care has
contributed to the causation of the loss or damage suffered by the plaintiff or the
claimant.
Facts:
In the instant case2, Carol Snushall, the appellant as well as the plaintiff was inside a
1968 model vehicle as a passenger and such vehicle was driven by Daniel Fulsang, the
defendant and he rear ended the vehicle driven by Georg Vetzal, the appellant. Due to
this, Sunshall was injured. Though she was wearing the seat belt while driving but
1 Goudkamp, James, and Donal Nolan. Contributory Negligence in the Twenty-First Century. Oxford
University Press, 2019.
2 Snushall v. Fulsang, 2005 CanLII 34561 (ON CA).

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failed to wear the shoulder belt. In the claim of motor vehicle negligence, the jury
decided that Fulsang was 80% faulty whereas Vetzal was held 20% faulty. On the
other hand, Snushall was decided 35% negligent contributorily as he failed to wear the
shoulder belt. Vetzal appealed against the decision that he was only 20 per cent
negligent. Snushal again appealed that he was only 35 per cent negligent
contributorily. The Ontario Court of Appeal however dismissed the appeal made by
Vetzal but he allowed the appeal made by Snushal and decided that her contributory
negligence will be reduced to 5 per cent only. The Ontario Court held that the verdict
given by the jury in the trial stage was not reasonable and was contradicting to the
general 5 to 25 per cent range of contributory negligence.
Issue:
The issues before the court was to decide whether the appeal made by Verzal and
Snushal should be allowed.
Decision:
The appellate court held that the appeal made by Vetzal must be dismissed and allowed
the appeal made by Snushal and decided that her contributory negligence will be
reduced to 5 per cent only. The assessment made by the jury regarding contributory
negligence of Snushel was beyond the scope of reasonable assessment. Analysing the
extent of liability of the plaintiff and the defendant must not be on the basis of
causation instead it should be on the basis of blameworthiness. Contributory
negligence for not wearing seatbelt must not exceed 25 %. Snushal had complied with
the legislatively defined standard of care as an occupant of an older car in which she
was riding. She was required to wear a lap belt and not the shoulder belt. Though it did
not discharge her of the contributory negligence but it was a significant factor to locate

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the degree of fault within limit. The evidence had not proved that wearing the shoulder
strap would have averted the injuries caused to Snushal. Considering all the situations,
the appropriate proportion of contributory negligence of Snushell was around 5 per
cent.
The trial judge observed that instead of considering the failure to wear seat belt as
contributing factor to the injuries, it would be significant to consider the negligence of
the defendant if such negligence is present and whether it is the main reason behind all
the injuries. However, the law allows some deduction of the damage of the plaintiff if
the plaintiff did not take reasonable steps to protect him from the effects of the
negligence of the defendant. It is the duty of the jury to decide the case depending on
all these factors. The jury must decide on the amount of reduction by which the
damages can be prevented and also taking into account the negligence of the defendant
that caused the accident which was the main reason of all the damage. It must also be
noted that the award for contributory negligence for not wearing seat belt should range
between 0 to 25 % and not more than that.

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References:
Goudkamp, James, and Donal Nolan. Contributory Negligence in the Twenty-First Century.
Oxford University Press, 2019.
Snushall v. Fulsang, 2005 CanLII 34561 (ON CA).