Many pedestrians, at their peril, believe that they have an absolute right of way when they seek to cross a roadway in a marked or unmarked crosswalk. However, while a duty of care is owed by drivers to pedestrians, pedestrians are also obligated to exercise due care for their own safety and the safety of others. If you fail to observe due care for your own safety and the safety of others as a pedestrian or as a driver, you could be found to have some responsibility for the collision or injuries that result.
Responsibilities of Drivers and Pedestrians
S.181 of the BC Motor Vehicle Act governs the rights of way between a vehicle and pedestrian, and s.179 sets out the responsibilities when a pedestrian is in a crosswalk. Although the driver is required to yield the right of way, the law states that a pedestrian must not step into the path of a vehicle if the vehicle is “so close” that it is impracticable for the driver to yield the right of way.
A driver has a duty to maintain a proper lookout and anticipate risk, depending on the circumstances.
If a pedestrian is crossing in a cross walk and is struck by a vehicle, in most cases the driver will generally be found at least partly at fault.
The division of fault or liability however is always determined by the specific facts of the case.
Some examples that can affect the assessment of fault are:
- The attentiveness of both the driver and pedestrian.
- The lighting and, weather conditions in the area.
- The clothes worn by the pedestrian.
- The speed of the vehicle.
- Did the pedestrian leave a place of safety and not leave the vehicle enough time to stop.
- Many other factors can affect the determination of liability.
While you have some responsibility to care for your own safety, you don’t have to be extremely vigilant to avoid an accident as would a driver. If you wait for traffic to stop and proceed at a normal pace across the crosswalk, you are entitled to assume that approaching drivers will obey the law and yield the right of way. You are not obliged to keep a constant eye on stopped vehicles in case the vehicles accelerate into the crosswalk, nor are you required to keep a distance from every vehicle in the immediate vicinity so you can react if a vehicle suddenly becomes a danger.
There are circumstances where you could be responsible for “inattentiveness.” Even though you have the right of way, you need to be aware of what is going on around you. For example, if you are using a cell phone and your inattention prevents you from noticing that a car is not going to stop, and from taking steps to avoid an accident, the court might find that you were partly responsible for the accident.
If you are found to share some of the responsibility for an accident that causes you injury, you are still entitled to some compensation for your injuries. Your compensation may be reduced in proportion to your percentage of liability.
How the Courts Decide Liability
Liability is determined according to the facts of the case. In making a determination, the main factors that the court will consider include:
- Whether the pedestrian acted reasonably and rationally;
- Whether the pedestrian and driver maintained a proper look out; and
- Whether the pedestrian was crossing at a crosswalk.
Sometimes the court decides that both the driver and pedestrian have some liability, which is what happened in the case of Ballah v. Gardner 1992 933 (BC SC). The pedestrian, Mr. Ballah, looked left and then looked at the traffic coming from his right before crossing a six-lane highway in an unmarked crosswalk. He was struck by Mr. Gardner’s vehicle which was coming from his left.
The court split liability on a 50-50 basis. The reason for this split was that the driver had a duty to yield to the pedestrian in the crosswalk, but his liability was reduced because the pedestrian left a place of safety.
Contact Taylor and Blair, Your Vancouver BC Personal Injury Lawyers
If you are a pedestrian and you have been injured in a crosswalk or otherwise, you should speak to a personal injury lawyer in Vancouver. You are welcome to contact us at Taylor and Blair for a free initial consultation, where you can tell us what happened and we can outline your options and how to proceed. Our Vancouver BC lawyers regularly deal with ICBC lawyers in Vancouver and Coquitlam. Contact us at 604-737-6900.