Car vs. Pedestrian: is the driver always at fault?

It’s often said that when it’s car vs. person, the car always wins. So does it follow that a driver who injures a pedestrian is automatically at fault?  You might think so, but that’s not always the case.

We know that the safest place for pedestrians to cross is at a crosswalk. But in reality, people cross outside of designated crosswalks (jaywalk) all the time. Maybe the nearest crosswalk is too far, maybe they’re in a hurry, maybe traffic seems light and crossing between intersections looks safe. It doesn’t always work out though.

In British Columbia, driver’s and pedestrian’s rights and obligations are legislated according to the Motor Vehicle Act, RSBC 1996 c. 318

Crossing the street

The law says that when crossing the street at a place other than a crosswalk, the pedestrian must yield the way to the driver (s. 180). But even at a crosswalk, pedestrians must behave with common sense and caution.

Section 179 says that “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”.

In a nutshell, a pedestrian stepping out in the path of a close or fast-moving vehicle can’t reasonably expect the car to stop in time to avoid a collision — even if he or she is at a crosswalk, with or without a walk light activated.

Just as pedestrians are expected to act with care, regardless of location, drivers have a duty to “exercise due care to avoid colliding with a pedestrian who is on the highway”, use the horn as a warning when necessary, and pay special attention to a child or an apparently confused or incapacitated person (s. 181).

The case law supports the legislation as well. Although drivers are most often found at fault, sometimes judges assign some responsibility to a jaywalking pedestrian. Meaning that as a pedestrian who has been injured in a collision with a motor vehicle, you might see your award reduced if you are found to have been at fault.

One example is Whelan v. BC Transit. In this case, the judge found the pedestrian 60% liable, and noted that “as a pedestrian he was extremely vulnerable to the oncoming bus and there were no safe circumstances under which he could have stepped on the road with it still moving forward in that curb lane. It was in essence a gamble on things playing out as he assumed they would, with a large downside, fortunately only a small part of which materialized here, to being wrong.”

In another case, Sandhu v. John Doe, the judge found the pedestrian “was negligent in attempting to cross the street where there was no crosswalk, marked or unmarked, and, more significantly, by walking into the lane in which [a defendant] was travelling, without looking to determine if a vehicle was approaching before entering that lane.” The pedestrian was assigned 75% of the liability.

Ultimately these pedestrians were awarded compensation for their injuries, however the award for damages was reduced by the percentage of their own contribution of liability.

Conclusion

ICBC will fight as hard as it can to ensure the driver isn’t found at fault. If you’ve been injured as a pedestrian, it makes sense to talk to a lawyer who can make sure you get the best representation and all the compensation you’re entitled to. A member of our team would be happy to meet with you for a free initial consultation.