Although pedestrian accidents are by definition a mismatch–a 1,500-kilogram car versus a human being–that does not mean the motorist is automatically liable for any injuries sustained by the pedestrian. As with any personal injury claim, a court must consider the relative fault of all parties involved. A judge may, in fact, decide that the pedestrian is largely responsible for his or her own injuries due to the pedestrian’s own negligence.
A recent decision by the B.C. Court of Appeal, Vandendorpel v. Evoy, offers a helpful illustration. This personal injury case actually made its second appearance before the Court of Appeal. In a 2015 decision, the Court of Appeal held the trial judge failed to properly apply the law before deciding the pedestrian plaintiff was 100% responsible for his accident. Following that ruling, the trial court reconsidered and decided the plaintiff was only 80% at-fault. This time, the Court of Appeal decided not to disturb the trial judge’s decision.
Here is briefly what happened. The plaintiff was walking to work one morning at around 6:45 a.m. The plaintiff approached a crosswalk and pressed the button to activate the traffic signal. However, the plaintiff did not wait for the “raised hand” signal and started to cross the road. While he was in the middle of the road, he saw the defendant’s car approaching. At this point, the plaintiff “began to run directly across” the road, according to court records.
For his part, the defendant said he did not see the plaintiff in the road “until it was too late to avoid the collision.” The front of the defendant’s car hit the plaintiff’s right foot, which knocked him to the ground. The plaintiff subsequently sued the defendant for his damages arising from this collision.
As mentioned above, the trial judge initially determined the plaintiff was 100% at-fault. This conclusion was based on the judge’s finding the plaintiff “breached statutory and common law duties imposed on him as a pedestrian.” This included the plaintiff’s failure to obey pedestrian traffic control signals, failing to keep a proper lookout for cars, and failing “to take precautions when there was an apparent hazard by sprinting across the [defendant’s vehicle’s] path rather than retreating.” Simultaneously, the judge also determined that the defendant did not breach of any his statutory duties as a driver.
On this latter point, the Court of Appeal disagreed. In its 2015 decision, the appellate court identified a number of statutory duties the defendant may have breached, including whether he was traveling above the posted speed limit at the time of the accident. The Court of Appeal therefore directed the trial judge to reconsider the evidence and reassess the comparative fault of both parties.
After a second hearing, the trial court did in fact determine that the defendant was speeding. The applicable speed limit was 50 km/hour. Based on expert testimony, however, the court found the defendant was actually travelling at around 55 km/hour. That said, the judge held that the defendant’s speeding did not outweigh the plaintiff’s reckless conduct as a pedestrian. Accordingly, the revised judgment found the defendant only 20% liable for the accident and the plaintiff’s injuries.
To go into more detail, the trial judge noted that while both sides “failed in their respective duties of care” under B.C. law, the plaintiff’s failure was more egregious. The judge reiterated the plaintiff was “dressed in dark clothing, including a dark hooded pullover that was zipped up to the top.” None of the clothing had “light reflective qualities,” which would have made it easier for a motorist–including the defendant–to spot the plaintiff in the middle of the road. And while wearing dark clothing alone is not negligent, this had to be looked at in combination with the fact the plaintiff was also “wearing headphones and listening to music  that reduced his ability to hear any oncoming traffic,” while attempting to cross a five-lane highway in the early morning hours. And as noted earlier, the plaintiff did not wait for a clear traffic signal before proceeding into the intersection initially.
The judge also pointed out that the headlights from the defendant’s vehicle “would have been visible from at least 100 metres away.” The fact the plaintiff did not see the car before it hit him strongly suggested he failed to keep a lookout for vehicles. Given all these factors, the trial judge concluded that the plaintiff showed a “reckless disregard for his duties as a pedestrian on the roadway,” which outweighed the “minimal” speeding of the defendant.
The Court of Appeal said that during this second hearing, the trial judge “considered and applied each statutory duty” within the boundaries of the law. The plaintiff may have been dissatisfied with the result, but he was not entitled to “reargue his case” on appeal. And given the facts, the trial court’s apportionment of fault was not “grossly disproportionate” to what has been established in prior B.C. cases.
If there is one takeaway from this case, it’s that you cannot presume that just because you are a pedestrian, you are free to act recklessly when crossing a street. The law imposes certain duties on drivers and pedestrians alike. So, when you are out walking, keep these basic tips in mind:
Of course, if you are in an accident, you should still seek qualified legal advice from a Vancouver personal injury lawyer. Contact the Preszler Law Firm today if you have been involved in a motor vehicle or pedestrian accident and need immediate assistance.