Contributory Negligence, Apportionment, Cases Relied on & Analysis

Contributory negligence, if proven by the Defendant, will result in a reduction on the value of your case. Reductions for contributory negligence are generally in the 10 – 40% range.

This recent decision in Howell v Machi, 2017 BCSC 1806 analyzes the law as it pertains to contributory negligence specifically relating to an incident of a jaywalking pedestrian.

It is a very unfortunate case in which a young 22 year old was jaywalking, and struck by a truck that did not stop at the scene. The Plaintiff sustained serious life-altering injuries including a brain injury.  She was successful in proving her damages and recovered $2,178,781.00.

The Defendant in this case, however, successfully plead the defence of contributory negligence, and argued that the Plaintiff should be found 50% contributory negligent as she was jaywalking at the time of the collision.

Arguments were raised by the Plaintiff’ that she should not be found contributory negligent, but in the alternative, if she was contributory negligent than the apportionment should not be more than 1-5% her fault.

The Court concluded that the Plaintiff was in fact contributorily negligent, and was found 25% at fault.

This case will review the “Aberdeen” factors, and will also outline the facts and circumstances that the Courts will consider when assessing the “Aberdeen” factors in cases of jaywalking pedestrians or pedestrians and motor vehicles.

When reviewing these decisions, it is important to review both arguments and also take note of the cases that are referenced and relied on by both parties.

Let’s review the discussion, the arguements and the analysis:

Contributory Negligence

[110]     ICBC urges me to find Ms. Howell at least 50% at fault for the Accident. By contrast, Ms. Howell suggests that I should find no contributory negligence on her part, or that only a token apportionment of liability, of between 1-5%, should be attributed to her.

[111]     The starting point for the apportionment of liability in this case is ss. 179, 180 and 181 of the MVA. As relevant to this case, those sections provide:

Rights of way between vehicle and pedestrian

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.

Crossing at other than crosswalk

180  When a pedestrian is crossing a highway at a point not in a crosswalk, the pedestrian must yield the right of way to a vehicle.

Duty of driver

181  Despite sections 178, 179 and 180, a driver of a vehicle must

(a) exercise due care to avoid colliding with a pedestrian who is on the highway,

(b) give warning by sounding the horn of the vehicle when necessary, and

[112]     A number of cases have considered the issue of the comparative fault of motorists and pedestrians who cross roadways outside of crosswalks. Justice Dickson, then a member of this Court, summarized the applicable cases and principles in Hmaied v. Wilkinson, 2010 BCSC 1074 at paras. 21-29:

[21]        [The provisions in the Act] do not amount to an exclusive code relating to the rights of way between pedestrians and vehicles. Rather, they supplement the common law duty of all highway users to exercise what constitutes, in all of the circumstances, due care …

[22]      When an accident occurs on a highway, the starting point for analysis is a determination of who had the right of way. Generally speaking, the party with the right of way is entitled to assume that other highway users will obey the rules of the road. In particular, drivers are ordinarily entitled to expect that adult pedestrians will not jump out directly in front of them as they are proceeding lawfully along their way.

[23]        Regardless of who has the right of way, however, there is a duty upon drivers and pedestrians alike to keep a proper lookout and take reasonable precautions in response to apparent potential hazards. Depending on the circumstances, from a driver’s perspective one such hazard may be a jaywalking pedestrian. If it is reasonably foreseeable or apparent that a pedestrian will disregard the law and thus create a hazardous situation, a driver is obliged to take all reasonable steps to avoid a collision. In such circumstances, if the driver has a sufficient opportunity to avoid the collision, but does not take appropriate evasive action, the driver will be found negligent.

[24]      The standard required of drivers in responding to pedestrian-created hazards such as jaywalking is not one of perfection. …The applicable standard of care is one of reasonable prudence in all of the circumstances.

[25]        Pursuant to s. 180 of the Act, a pedestrian must yield the right of way to a vehicle when crossing a highway at a point that is not in a crosswalk. Pursuant to s. 181 of the Act, despite s. 180, a driver is obliged to exercise due care to avoid colliding with a pedestrian who is on the highway.

[26]      In Funk v. Carter, 2004 BCSC 866 (CanLII), Williamson J. held that where a pedestrian has clearly established prior entry to an intersection he or she need not surrender it to an approaching vehicle, even when not crossing at a crosswalk. In Claydon, supra, Baker J. cited Funk, supra with approval in the context of a case involving a jaywalking pedestrian and a speeding driver who failed to keep a proper lookout. In so doing, she found that both parties were negligent.

[27]        Where a plaintiff pedestrian and defendant driver both fail to meet the requisite standard of care and an accident ensues, the court may apportion liability between them. Before liability will be apportioned, however, the defendant must establish that the plaintiff’s fault was a proximate, or effective, cause of the loss. …

[29]        Each case is, of course, uniquely fact-driven. It may be helpful, however, to consider the liability apportionment assessed in other cases that involve similar factual elements.

[Citations omitted.]

[113]     Where there is more than one proximate cause of a loss, the Negligence Act, R.S.B.C. 1996, c. 333, s. 1(1) requires an apportionment of liability on the basis of “the degree to which each person was at fault”. As decided in Cempel v. Harrison Hot Springs Hotel Ltd., [1997] B.C.J. No. 2853 (C.A.) at para. 19, the apportionment must be made on the basis of degrees of fault, not degrees of causation, with “fault” meaning blameworthiness.

[114]     In this case, neither party had the right of way as both parties contravened the MVA. Thus, the focus is on whether, in the circumstances, each party took reasonable precautions in response to the potential hazards. I must therefore decide, in all of the circumstances, the extent to which Mr. Machi and Ms. Howell, both of whom contributed to the Accident, fell short of the standard of care required of them.

[115]     In Alberta Wheat Pool v. Northwest Pile Driving Ltd., 2000 BCCA 505 at para. 46. Justice Finch described the range of blameworthiness, as follows:

Fault may vary from extremely careless conduct, by which the party shows a reckless indifference or disregard for the safety of person or property, whether his own or others, down to a momentary or minor lapse of care in conduct which, nevertheless, carries with it the risk of foreseeable harm.

[116]     In the often-cited Aberdeen v. Langley (Township), 2007 BCSC 993, varied on other grounds, 2008 BCCA 420 at para. 62, Justice Groves summarized the factors courts have considered in assessing moral blameworthiness and contributory negligence. Those factors are:

1)    the nature of the duty owed by the tortfeasor to the injured person;

2)    the number of acts of fault or negligence committed by a person at fault;

3)    the timing of the various negligent acts;

4)    the nature of the conduct held to amount to fault;

5)    the extent to which the conduct breaches statutory requirements;

6)    the gravity of the risk created;

7)    the extent of the opportunity to avoid or prevent the accident or the damage;

8)    whether the conduct in question was deliberate or unusual or unexpected; and

9)    the knowledge one person had or should have had of the conduct of another person at fault.

[117]      A review of other cases involving jaywalking pedestrians or otherwise involving pedestrians and motor vehicles, courts tend to look at the following facts or circumstances when assessing the Aberdeen factors:

  • whether the driver or pedestrian was keeping an adequate look-out for cars or pedestrians, including jaywalking pedestrians;
  • whether the driver or pedestrian took reasonable precautions, such as modifying speed in areas where pedestrians might be or looking both ways before proceeding into a crosswalk;
  • the speed of the driver compared to the speed limit and the conditions;
  • whether the driver obeyed the rules of the road, such as signaling;
  • whether the pedestrian or car was “there to be seen” including an assessment of the weather, time of day, state of traffic, use of headlights, light or dark clothing for pedestrians, and other visibility factors;
  • the nature of the area where the accident occurred, such as whether it is a busy street or whether there are frequent jaywalkers;
  • the presence of nearby crosswalks;
  • where the pedestrian crosses, mid-block or nearer to an intersection where any reasonable adult might be expected to attempt to cross;
  • whether the pedestrian was wearing headphones; and
  • generally, what could reasonably be foreseen by either the driver or pedestrian.

[118]      Applying the Aberdeen factors, in support of her argument for a token apportionment of liability, Ms. Howell relies on a number of acts of fault or negligence committed by Mr. Machi. In particular, Ms. Howell submits that Mr. Machi:

  1. was driving with a suspended license;
  2. pulled into oncoming traffic lanes to get around stopped traffic;
  3. drove over the yellow painted island;
  4. struck Ms. Howell when she was there to be seen;
  5. fled the scene of the Accident; and
  6. refused to cooperate with police or ICBC in their investigations.

[119]     ICBC does not dispute that Mr. Machi was negligent on January 20, 2014, but submits that Ms. Howell failed to take reasonable care for her own safety. In particular, ICBC submits that Ms. Howell:

  1. crossed East 1st Ave, a very busy area, during rush hour traffic, between stopped vehicles and not in a crosswalk;
  2. was wearing a dark burgundy coat and a grey toque, at night time;
  3. crossed in front of Ms. Low’s SUV which would likely have obstructed both Ms. Howell’s and Mr. Machi’s view; and
  4. only looked to her right before stepping out of the lane in which Ms. Low was stopped.

[120]     Further, ICBC relies on the following evidence in support of its argument:

  1. Low did not expect to see a pedestrian crossing at that location;
  2. there was a crosswalk half a block up East 1st ;
  3. Low testified that Ms. Howell was walking at a steady pace and Ms. Howell described walking quickly as she was concerned that the light at Commercial Dr. might change;
  4. Bouchard testified that he had seen other vehicles drive over the yellow painted island to get into the left turn lane;
  5. Howell ought to have heard the truck approaching as Mr. Bouchard, who was across the street and further west on 1st Avenue, said he had heard it accelerating for three seconds prior to the impact and it caused him to look around;
  6. Howell did not look to her left before stepping out from in front of Ms. Low’s vehicle. Had she done so, she would have seen the truck approaching with its headlights on; and
  7. Howell was struck near the beginning of the dedicated left turn lane where she ought to have anticipated vehicles could be travelling.

[121]     Not surprisingly, based on their very different assessments of the appropriate apportionment of responsibility in this case, Ms. Howell and ICBC rely on different fact-specific cases in support of their positions.

Cases Relied on by Ms. Howell

[122]     Ms. Howell relied on the following cases.

[123]     In Kuharski v. Inder, [1986] B.C.J. No. 2762 (S.C.), the defendant was found 100% liable to a pedestrian, who crossed a street, not in crosswalk, but who had “gained so substantial a prior entry on to the highway that she had achieved the right-of-way.”

[124]     In Funk v. Carter, 2004 BCSC 866, a pedestrian was attempting to cross an intersection on a dark rainy night. The intersection had marked crosswalks on three sides, but no markings on the side at which the plaintiff crossed. The defendant’s car hit the plaintiff while making a left turn through the intersection. The court determined that where a pedestrian has clearly established prior entry into an intersection, they need not surrender it to an approaching vehicle, even when not crossing at a crosswalk. Liability was apportioned 90% to the defendant and 10% to the plaintiff.

[125]     In Anderson v. Kozniuk, 2013 BCCA 46, the plaintiff pedestrian was initially crossing a roadway at an unmarked crosswalk in a well-lit intersection. After he started crossing, he veered diagonally across the road, leaving the unmarked crosswalk, to get to a bus stop. There was no evidence that the defendant tried to stop prior to the collision. The judge considered the plaintiff liable for failing to remain in the crosswalk, where he was more visible to traffic, and for not checking to make sure crossing outside the crosswalk was safe, but found the defendant liable for not maintaining a careful lookout and reducing her speed in an area where she should have known pedestrians were likely to be crossing. The court upheld the trial judge’s apportionment of liability 70% against the defendant, and 30% against the plaintiff.

Cases Relied on by ICBC

[126]     ICBC relied on the following cases.

[127]     In Sandhu v. John Doe, 2012 BCSC 1423, a pedestrian was on the sidewalk when a driver stopped in the curb lane and motioned for her to cross. The plaintiff began to cross, and after successfully navigating the curb lane, was struck by the defendant’s vehicle travelling in the centre lane. Liability was apportioned 75% to the plaintiff and 25% to the defendant. The Court determined that the plaintiff was negligent in attempting to cross the street where there was no crosswalk and by walking into the centre lane without determining whether a vehicle was approaching in that lane.

[128]     In Walter v. Plummer, 2010 BCSC 1017, aff’d 2011 BCCA 335, the plaintiff was jaywalking near his secondary school in order to get to a bus stop. He was struck after he crossed three traffic lanes and stepped out from in front of a large truck that had stopped for a red light. The defendant driver was driving in the lane to the right of the truck. Liability was apportioned 60% to the plaintiff and 40% to the defendant.

Conclusion on Contributory Negligence

[129]     Taking into account the Aberdeen factors, and applying them to the circumstances of this case, I conclude that it is appropriate to find Mr. Machi 75% at fault for the Accident and Ms. Howell 25% at fault. My reasons are as follows.

[130]     First, as I have concluded that Mr. Machi was driving the Sierra on January 20, 2014, he was doing so while his license to drive was suspended. To make matters worse, his license had been suspended for a year for the earlier offence of driving while under suspension. This was not Mr. Machi’s first license suspension for driving while prohibited. His driving record revealed three driving while prohibited suspensions which he acknowledged during his evidence.

[131]     Had Mr. Machi had any regard for the legal prohibition against him driving, he would not have been on the road on January 20, 2014, and would not have hit Ms. Howell. He was clearly in breach of a statutory obligation.

[132]     I accept ICBC’s argument that the blameworthiness assessment culminates with the Accident. The fact that Mr. Machi left the scene without stopping and did not cooperate with the police does not directly impact the apportionment of liability, but it is another example of Mr. Machi’s disregard for the legal rules which apply to him and govern behaviour in a civil society.

[133]     Second, if Mr. Machi had patiently waited in the stopped traffic until the vehicles in front of him moved forward so that he could legally and safely access the dedicated left turn lane, Ms. Howell would have safely made her crossing of East 1st Ave. She was not at risk from the stopped traffic eastbound; she had safely navigated across those two lanes of stopped eastbound cars. Further, she was not at risk from westbound traffic as westbound traffic was stopped at the red light. There was sufficient time for her to cross safely as, according to Mr. Bouchard’s evidence, after Mr. Machi struck Ms. Howell, he still had time to drive up to the corner in a lane intended for left turners, and then turn right in front of stopped traffic.

[134]     Ms. Howell, Ms. Low, and Mr. Bouchard all located the point of impact at a similar location, approximately at the start of the dedicated left turn lane. As Ms. Low’s evidence was clear that Mr. Machi was not in the vehicle which was stopped directly behind her in the line of eastbound traffic, for Mr. Machi to have accessed the dedicated left turn lane, he must have driven, in part, the wrong way in the westbound lanes and then straddled the painted yellow island demarcated in the pictures filed in evidence. Doing so was a breach of the MVA.

[135]     Mr. Machi was taking a risk in driving up the westbound lanes and straddling the painted yellow island. He had an extra responsibility to proceed carefully and slowly and to watch out for pedestrians or other eastbound vehicles which might also try to get a jump on traffic and access the dedicated left turn lane.

[136]     Dr. Heran’s evidence, which I refer to below, confirmed that breaking Ms. Howell’s skull, as depicted on her scans, required considerable force. Based on the evidence of the eyewitnesses, Mr. Machi was travelling at least 40 kph and possibly as fast as 60 kph. That is an excessive rate of speed in those circumstances.

[137]     Third, Mr. Bouchard, who had lived in the area for most of his life, testified that it was not unusual for pedestrians to be crossing East 1st Ave. outside of a crosswalk. Mr. Machi should have been on the lookout for pedestrians in that location. In any event, as a result of Mr. Machi’s denial that he was the driver, Mr. Machi did not put forward any evidence about the circumstances on the evening of the Accident. Ms. Howell’s counsel could not examine him about the steps he took to avoid the Accident. As a result, there is no evidence from Mr. Machi on which I could reach the conclusions urged upon me by ICBC that he had no reason to anticipate a pedestrian at that location or that he had no chance to avoid the collision because Ms. Howell had only taken one or two steps before she was hit.

[138]     During cross-examination, Mr. Machi acknowledged that Vancouver pedestrians jaywalk and that drivers need to keep an eye out for them. He also acknowledged that there are many of pedestrians at the intersection of Commercial St. and East 1st Ave. While Mr. Machi denied having seen jaywalkers in the specific location of the Accident, Mr. Bouchard, who had lived in the area for most of his life, testified that he often saw jaywalkers in that area and had jaywalked himself. Ms. Low indicated that she did not expect a pedestrian to cross in front of her vehicle; however, I found Mr. Bouchard’s evidence the most reliable as to the neighbourhood pedestrian conditions because he was a life-long resident. As a result, in all the circumstances, Mr. Machi should have taken greater care and been aware of the possibility of jaywalking pedestrians.

[139]      Fourth, Ms. Low testified that Ms. Howell was looking left as she passed in front of her SUV. She recalls seeing Ms. Howell’s face. Ms. Howell testified that she made eye contact with Ms. Low. Ms. Low recalled Ms. Howell stopping or slowing down, and looking to her right before stepping forward over the yellow line. It was clear that Ms. Howell was not expecting a risk from the east as she could not have anticipated that Mr. Machi would drive in a manner that breached the MVA.

[140]     While it was dark at 6:15 p.m. on January 20, 2014, Ms. Howell crossed East 1st Ave. near to a street light, and headlights from the stopped cars travelling eastbound would also have provided illumination.

[141]     Ms. Howell’s negligence included the fact that she was not crossing in a crosswalk, or at the intersection, in busy traffic during rush hour. Second, she was wearing a burgundy jacket and a grey toque which made her less visible.

[142]     Third, Ms. Howell did not recall hearing the pickup truck although Mr. Bouchard did so from further away and across the street. She did not look to her left before stepping forward from in front of Ms. Low’s SUV which likely hid her from view of anyone approaching the dedicated left turn lane.

[143]     Fourth, had Ms. Howell looked to her left before stepping out from in front of Ms. Low’s vehicle, she would have seen Mr. Machi’s pickup truck approaching as she testified that she was aware of his lights a split second before the collision.

[144]     Finally, despite not being a driver herself, Ms. Howell should have been aware of the possibility that a driver might breach the MVA to access the dedicated left turn lane.


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