A recent decision William v. Ross, 2017 BCSC 2200 provides an analysis of fault as it relates to a pedestrian / car crash.
Below are some of the relevant facts you will need to outline for the Court:
- Where was the pedestrian prior to the crash;
- Where was the pedestrian walking;
- Was the Pedestrian carrying anything;
- Description of the visibility on the day in question;
- Was there a marked cross walk;
- Was the pedestrian cross walk controlled by traffic lights;
- What were the Pedestrians observations prior to crossing?
- Where within the cross walk was the Plaintiff situated at the time of impact;
- Where was the Defendant vehicle coming from;
- What were the Defendant’s observations prior to striking the Plaintiff;
- Were there other vehicles in the vicinity / distractions ?
- How fast was the Defendant vehicle travelling?
- When did the Defendant driver observe the pedestrian?
In this claim, the Plaintiff had been grocery shopping and had been travelling on a bus on her way home. She exited the bus, and walked towards Main & 39th intending to cross Main Street, which is a very busy street. She was crossing within a marked cross walk. She was carrying two grocery bags, and had a hand bag on her shoulder. The evidence confirms that the Defendant vehicle was not going fast, and that the Plaintiff had already crossed more than half way into the crosswalk, and was beginning to enter the path of the Defendant vehicle.
The Defendant admitted to fault on the day in question, however, takes the position that the Plaintiff Pedestrian should be found 25% contributory negligent based on the argument that having the right of way does not absolve the Plaintiff from the duty to look out for her own safety.
The principle reviewed:
179 (1) Subject to section 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 the pedestrian is crossing the highway 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.
(2) A pedestrian must not leave a curb or other place of safety and walk or run into the path of a vehicle that is so close it is impracticable for the driver to yield the right of way.
The Defendant relies on the following cases:
Feng v. Graham, 1988 CanLII 3044 (BC CA), 1988 CanLII 3044 (BCCA
I find as a fact based upon the evidence of the plaintiff and Mr. McKay that Mrs, Feng was lawfully within the crosswalk. It was the duty of Mrs. Armstrong to yield the right of way to her. I find that Mrs. Feng complied with para. (b) of s. 136(3) and that she did proceed with caution and had an absolute right of way in these circumstances. In this regard I do not accept the evidence of the defendant and I reject it without hesitation. I also reject the defendant’s contention that she did not strike the plaintiff. I did not find the defendant credible. I find that she was not keeping a proper lookout and she was not proceeding with caution as is the duty required within s. 136 of the Motor Vehicle Act.
 Counsel for the defendants submitted that on the evidence the respondent was at least contributorily negligent for the accident which caused her injuries. Her alleged negligence consisted of leaving the curb and walking hurriedly into the path of the motor vehicle driven by the defendant when that vehicle was so close that it was impracticable for her to yield the right of way. He asserted that the slightest lookout on the part of the plaintiff would have revealed the presence of the defendant’s vehicle and any hesitation on her part would have allowed the defendant’s vehicle to pass her safely.
 In my view the plaintiff in the circumstances of this case was entitled to assume that the defendant was going to obey the law and yield the right of way to her. Her right to rely on that assumption continued until such time as she knew, or ought to have known, that the defendant was not going to grant her the right of way, whereupon the plaintiff’s obligation to avoid injury to herself superseded her right to exercise her right of way. The onus is on the defendants to establish that the plaintiff knew, or ought to have known, that the defendant driver was not going to grant her the right of way, and that, at that point of time, the plaintiff could reasonably have avoided the accident: see Mercer v. Mercer, 1949 CanLII 237 (MB CA),  2 W.W.R. 294 at 296,  3 D.L.R. 826 (Man. C.A.).
 My review of the evidence discloses that the defendants failed to adduce evidence on this point which would meet the onus placed upon them by the circumstances of this case.
Farand v. Seidel, 2013 BCSC 323 (CanLII
This decision states “The onus is on the defendant driver of the vehicle that struck a pedestrian in a marked crosswalk to establish that the plaintiff knew, or ought to have known that the defendant was not going to grant her the right of way and that, at that point of time, the plaintiff could reasonably have avoided the accident.”
 Ms. Ross’ evidence was that after concentrating on a northbound vehicle on Main St. she turned her head back towards the crosswalk and saw the plaintiff in the crosswalk a foot or two in front of her vehicle and hit the brakes. Her vehicle stopped but not before hitting the plaintiff.
 By the time that Ms. Ross saw the plaintiff she had walked across one lane on the crosswalk and was in the defendant’s intended lane of travel. In the circumstances it is my view that the plaintiff could reasonably expect that she would be visible to approaching traffic. Ms. Ross was travelling slowly and the plaintiff could not reasonably have known that the defendant would not stop. Whether or not the plaintiff had the right of way, Ms. Ross did not see her until it was too late to avoid hitting her.
 As in Farand, in my opinion there was nothing that the plaintiff did or failed to do that contributed to the First Accident in any way and Ms. Ross is entirely at fault.
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