June 1, 2005
Every year we hear stories of tragic accidents involving vehicles and pedestrians. Traffic laws, and fault based insurance claims are deterrents, but compensation for accident victims can never replace their losses. Greater caution on the part of drivers could reduce the risk of these accidents, but pedestrians share the responsibility for their own safety. Recognizing that rights come with responsibilities is an important safety reminder as much as it is part of the liability puzzle in the event of a court action.
In Ontario, as in most provinces, the law recognizes that pedestrians are generally entitled to the right of way over motor vehicles. This is sometimes said to be because vehicles can cause great bodily injury to pedestrians.
Ontario’s Highway Traffic Act provides the right of way, at pedestrian crossovers, in section 140. It goes further, however, in section 193, to establish that in a collision between a motor vehicle and a pedestrian, the onus is on the driver to prove that the accident was not the driver’s fault.
This is a very difficult task, and in almost all cases, the driver will be found at fault for the pedestrian’s injuries. Despite this, however, it is important to remember that pedestrians still have an obligation to watch where they are walking. This may lead to two results:
- in a very rare case, known as a ‘darting’ case, the driver is not at fault at all because the pedestrian ran out so close to the vehicle that no one could have stopped
- in a less rare situation, the pedestrian may be found to be partially at fault for their own injuries, reducing the amount of compensation recovered.
These points may be forgotten, however, because the general principle of driver fault is so common that cases rarely go to trial, and even more seldom to appeal.
A useful reminder, based on a simple common fact situation is found in a 2004 New Brunswick Court of Appeal judgment, O’Donnell v O’Blenis. (I am indebted to my friends at Stewart McKelvey Stirling Scales in Halifax for drawing the case to my attention). In that case, the driver was stopped at a sidewalk outside a fast food restaurant, looking left for traffic to clear. The pedestrian approached from the driver’s right. She concluded that traffic was too heavy to allow the driver to pull out, so she walked into the path of the vehicle, even though she knew the driver had not seen her. The driver pulled ahead and struck her knee, causing an injury. The pedestrian was found 40% at fault for failing to keep a proper lookout.
The Court of Appeal recognized that in the vast majority of cases, the driver is 100% at fault. However, they cautioned that: “…no right-of-way is absolute. Pedestrians may not use sidewalks without regard to prevailing risk-carrying circumstances.”
In upholding the finding of 40% fault on the pedestrian, they pointed to the facts:
- the pedestrian knew or ought have to known that the driver attempting to enter the flow of traffic
- the driver was looking left as she came from the right
- the driver was apparently unaware of the pedestrian’s presence
- the pedestrian could have walked around the rear of the vehicle safely.
They found that she ought to have taken that step as a reasonable precaution for her own safety. If she had done so, the accident would have been avoided.
This result makes a lot of sense. The driver was clearly at fault for pulling up without looking back to his right, but the pedestrian shared the responsibility. Hopefully, the reminder will caution drivers to watch carefully, and pedestrians to take care for their own safety. A moment of inattention may result in life altering tragedy.