On November 1, 1990, the defendant, Heather Sexsmith was driving to her parent’s farm in Saskatchewan. The only passenger was the plaintiff, 15-year-old Diana Bishop. On the way to the farm, Heather and Diane stopped at Diane’s brother’s home where Diana got out of the vehicle. When she got back into the vehicle, she did not put on her seatbelt. A short time later, Heather pulled to the right of the road to allow a truck to pass and the vehicle she was driving began to fishtail. It hit a ridge of dirt and gravel on the side of the road, Heather lost control of the vehicle, and it rolled into the ditch. The driver of the passing truck immediately came to the scene of the accident. He found Heather hanging upside down in her seatbelt and Diana lying in the field not far from the vehicle. Diana suffered head injuries, a fractured vertebra and minor physical injuries.

The plaintiff sued for damages. The defendant admitted liability but argued that the defendant contributed to the negligence by not wearing a seat belt. Proving contributory negligence would have likely meant the plaintiff could have been apportioned a percentage of the damages, which totalled $65 551.05.

In order for the defence of contributory negligence to be successful, the defendant had to prove that not only was the seatbelt not worn, but that the injury would have been prevented or lessened if the seatbelt had been worn.

At trial, an expert in reconstructing the accident testified that because most of the damage occurred on the passenger side of the vehicle, it was more likely that the defendant would receive more serious injuries than the driver, even if she was wearing a seat belt.

The judge dismissed the defendant’s claim that Diana was contributory negligent.