By MARK COOMBS, Student at Law

Ever jaywalk across the street, even when there is heavy traffic? We all do it here in Toronto. Whether we’re late for work, running to meet a friend for lunch or rushing to meet another commitment, life in the city is fast paced, and we want to get where we’re going quickly.

What you should know, is that if you are hit by oncoming traffic while jaywalking you may be considered completely at fault. This means you will be unsuccessful in a Court action against a driver that hits you. You might be on the hook to pay out for your own injuries, even if those injuries are extreme.

You might also pay for your mistake with your life. Pedestrian injuries and deaths are a serious issue in Toronto. In 2013 there were almost as many pedestrian deaths as there were homicides according to Toronto police. If you look at traffic fatalities from 2009 to 2013, pedestrian deaths often account for more than vehicle drivers, passengers, motorcyclists and cyclists combined and 23 pedestrian deaths have already been recorded for just the first six months of 2015.

It’s clear from the case law that pedestrians who do not cross from a crosswalk will often have their actions against defendants dismissed or, will be found contributorily negligent and have a larger portion of the liability accounted as their fault.

One factor on the pedestrian side though, is that the Highway Traffic Act, R.S.O. 1990, c. H.8 , s. 193(1) creates a reverse onus on drivers to disprove that an accident was caused by their negligence in Ontario:

…the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.

It’s important to remember that this onus only applies on public roadways and will not apply to accidents that happen on private property or parking lots. Nonetheless, for accidents on main streets and highways, drivers will be required to show that they took all reasonable precautions to avoid an accident if they hit a pedestrian.

Cases Where Drivers Were Found to be Negligent

In Sandhu v. John Doe, 2012 BCSC 1423, the plaintiff jaywalked when a driver stopped in the street and motioned for him to cross. Unfortunately another driver in a farther lane didn’t see him until it was too late. Although the Court found that the plaintiff had breached his duty of care in jaywalking, they found the defendant negligent because he:

should have been alerted that a pedestrian was crossing as the other vehicle was stopped. The plaintiff was held to be 75% at fault and the driver 25% at fault.

The Ontario Court of Appeal found a police officer liable in negligence in Gos v. Nicholson, [1999] O.J. No. 1243 (ONCA) when he hit the plaintiff. The Court affirmed the trial decision holding the officer 100% liable in this case where other cars saw the plaintiff and were able to stop. The plaintiff was supported by many independent witnesses who all saw that other cars were able to stop in time for the plaintiff to cross. The appeal by the officer was dismissed and the officer was held to be negligent by not keeping a proper lookout.

Similarly, in Atwater v. Reese, 2009 BCSC 370 the Court held a defendant 100% liable for hitting a jaywalking pedestrian where the defendant admitted to accelerating before the collision and that the plaintiff’s friend had already walked past the front of the defendant`s car before the defendant commenced her turn.

Cases Where Pedestrians Were Out of Luck

In the early case of Hulme v. Creelman, [1931] 1 D.L.R. 682 (ONCA), a man was hit and killed when he crossed the Queen and Spadina intersection in a hurry. The Court dismissed the case against the driver and held that the deceased was the author of his own misfortune. On the duty of pedestrians and drivers, the Ontario Court of Appeal said at paragraph 6:

When the driver of a motor vehicle has the signal lights with him he knows that the signal lights are against pedestrians crossing his path, and he has a right to expect that the signals will be obeyed by them. This does not mean that he must not use care if he observes negligent conduct on the part of a pedestrian. He must take every precaution to avoid an accident, but he is not in all cases to be regarded as negligent because he fails to observe the negligent conduct of the injured pedestrian.

The plaintiff was hit and suffered injuries in Pinsent (Guardian ad litem of) v. Brown, 2013 BCSC 794, when she jaywalked across a street in North Vancouver. The Court dismissed her action noting that, because she emerged from between parked cars and did not use the cross-walk, the driver did not have enough time to react and avoid a collision. The Court focused on the fact that the driver was not speeding and had the right of way, they found that the plaintiff was the sole cause of the accident regardless of the fact she was left with injuries to her head, legs and knees.

In Irvine v. Smith, [2008] O.J. No. 547 (S.C.J.), the plaintiff’s son ran across the street and while the defendant moved to give him more room, the son kept running and

collided with the defendant’s truck. The case was dismissed as the plaintiff’s son being completely at fault even though he was seriously injured as a result of the accident.

An 18 year old pedestrian attempted to cross 3 lanes of traffic during rush hour from a median in the roadway in Beauchamp v. Shand, 2004 BCSC 272. Although drivers in the lane closest to her and the middle lane stopped to let her cross, she was struck by a driver in the third lane who did not see her. The Court found there was nothing to alert the driver in the third lane that the plaintiff would be crossing in such a manner and dismissed her action. The Court’s decision in this case reiterates the responsibility placed on pedestrians. Although drivers had stopped for her, it was still the plaintiff’s choice to cross the street from a place where she was not supposed to.

Main Factors the Court takes into Account

The case law shows that liability between a pedestrian and a driver is largely based on the circumstances surrounding the accident and is fact specific. A review of the case law shows the major factors the court takes into account are:

(1) The pedestrian`s conduct: bolting across the road as in Irvine was a major factor in dismissing the case against the driver.

(2) The driver`s conduct: failure to keep a good lookout and accelerating into a turn were evidence of negligent driving in Atwater and Gos.

(3) The driver’s visibility at the time: the plaintiffs appearing from behind stopped vehicles as in Beauchamp, and Pinsent showed that the driver had little time to react. Bad weather conditions can also affect visibility.

(4) The evidence of independent witnesses: eye witness accounts were key in showing driver negligence in Atwater and Gos

(5) Whether the driver was speeding: evidence that the driver was speeding helped the plaintiff`s case in Gos and lack of that evidence hurt the plaintiff`s case in Pinsent.

Lessons Learned

Courts consider pedestrians that jaywalk to not be acting with the required care for their own safety. However, if a pedestrian is hit by a car in Ontario, the reverse onus provisions require a driver to show that all precautions were taken to avoid the collision. If you are driving in the city without due care and hit a pedestrian, you may be liable to pay for their injuries.

Pedestrians, keep in mind that the Court does not take into account how injured you are when it considers who is at fault for the accident. As in some of the cases above, if you are jaywalking and get hit, you may be found to be completely responsible for the injuries you suffer, no matter how extreme they are.

Remember, being a few minutes late might lead to a bad day, but a serious injury might impact you and your family for the rest of your life.

Do like your mother told you. Cross at the lights. Look both ways. Stay safe.


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