Liability In A Vancouver Pedestrian Accident
What Do The Laws Say?The presumption of negligence is on the driver when a pedestrian accident occurs. The onus is on the driver to show they did what they reasonably could in the situation to avoid the accident.
Section 179 of the Motor Vehicle Act outlines the rights of way between a vehicle and a pedestrian. S. 179(1) outlines that, subject to s.180, the driver of a vehicle must yield the right of way to a pedestrian where traffic control signals are not in place or not in operation when a pedestrian is crossing in a crosswalk and the pedestrian is on the half of the highway on which the vehicle is travelling or is approaching so closely from the other half of the highway that he or she is in danger.
Likewise, a pedestrian must not step out from the curb or place of safety when it is unsafe to do so, whether he or she is walking, jogging or running, according to s. 179(2) of the Motor Vehicle Act. A pedestrian is prohibited from walking into the path of a car, truck or motorcycle that is so close that the driver cannot reliably yield to the pedestrian. Additionally a pedestrian must give the right of way to a vehicle should a crossing not occur at a crosswalk (per s.180).
What Factors Are Considered In A Lawsuit?When an accident occurs, there are many unique factors to consider. The driver’s conduct, the pedestrian’s conduct, driver visibility, and the availability of witnesses are key when it comes to assessing liability.
The Driver’s Conduct
The driver’s conduct, in being weary and attentive to his or her surroundings, is exceptionally important. In Ng v Nguyen 2008 BCSC 1830 CanLII, the plaintiff was struck by the defendant's vehicle in a designated crosswalk. The driver had been focused on oncoming traffic and did not notice the pedestrian even though he had the right of way to cross. The driver was found fully liable for the accident.
Any evidence of speeding and aggressive driving at the time when striking a pedestrian adds significant liability as does any proof of distracted driving or impaired driving. Not slowing down when there is a pedestrian on the shoulder of the road or accelerating through a yellow light would weigh negatively against the driver.
In Atwater v. Reese, 2009 BCSC 370 CanLII, a driver was found 100% liable after a pedestrian was hit. Even though the pedestrian was jaywalking at the time, the driver had accelerated after seeing the pedestrian’s friend already crossing before turning and hitting the pedestrian.
The Pedestrian’s Conduct
Where a pedestrian crosses from is critical. Crossing at a random spot on a street, for example, places a lower standard of care on a driver than if a pedestrian crosses at a designated crosswalk.
In Sandhu v John Doe, 2012 BCSC 1423 (CanLII), for example, the pedestrian jaywalked when a driver stopped in the street and motioned for him to cross. However, another driver in a farther lane did not see him in time and there was a collision. Although the court found that the pedestrian had breached his duty of care in jaywalking, the driver was found negligent because he should have been weary that a pedestrian was crossing as the other vehicle was stopped. The pedestrian was held to be 75% at fault and the driver 25% at fault.
Potential distractions on the part of the pedestrian (e.g., listen to music, texting) are also considered heavily. In Talbot v Kijanowska 2013 BCSC 728, for example, the pedestrian had been drinking and crossed from an alleyway while wearing headphones, causing a collision with the driver who was travelling about 25kph. The court determined the pedestrian was 100% liable for the accident in that he had not been properly paying attention when crossing.
In another case, Bishop v Hiebert 1996 CanLII 2552 (BC SC), a 15-year-old pedestrian was found 65% liable for an injury that occurred when she crossed 15 feet away from an available crosswalk. Although the driver accelerated to a speed above the speed limit at a yellow light (and was found partially liable), the pedestrian had been listening to music with her earphones at the time of the accident.
The driver’s visibility is also important in assessing liability, for it would be considered unfair for the driver to be found completely liable if he or she could not see a pedestrian well.
Poor weather conditions (e.g., rain or snow), poor lighting (e.g., at night), and whether the pedestrian’s clothing stood out may have contributed to the accident. In Pinsent (Guardian ad litem of) v Brown 2013 BCSC 794 CanLII, for example, the weather at the time was rainy and the pedestrian was wearing a black jacket, black pants and dark boots, which made it more challenging for the driver to notice her. In this case, the pedestrian was found 100% liable for her injuries as she emerged from between parked cars and did not use the crosswalk, giving the driver no time to react and avoid the collision.
Eyewitness accounts, especially independent witnesses, are additionally important; they can serve as strong evidence that is sometimes invaluable to determining liability in a personal injury case. For example, in Gos v Nicholson 1999 CanLII 199911 (ONCA), a police officer was found 100% liable when he accidently hit the pedestrian, though, on appeal, the court varied his liability to 75%. A large part of the finding of the officer’s negligence stemmed from the eyewitness accounts and other drivers who said they had plenty of time to stop for the pedestrian to cross the street.
CALL OUR PERSONAL INJURY LAWYERS IN VANCOUVER, BURNABY, COQUITLAM, LANGLEY, SURREY
As the driver in a pedestrian accident, your ICBC policy will cover for an ICBC lawyer to defend you. As the pedestrian injured, you need your own lawyer to represent you in a case against the driver. You may be entitled to compensation, even if you were jaywaying. Contact us at Kenneth Cristall Law Corporation at 604-654-225 to speak to a personal injury lawyer in Vancouver, Burnaby, Coquitlam, Langley, Surrey, Richmond or New Westminster.