A common misconception that can arise is that jaywalkers will always be found fully responsible for any collision with a vehicle. In fact, it can sometimes be the case in scenarios with respect to ICBC claims involving jaywalkers that there is an apportionment of liability.

 

In Khodadoost v. Wittkamper, the Plaintiff crossed the street outside of a crosswalk, two car lengths north of the intersection. As he crossed the road, he began walking at an angle towards the crosswalk. The Defendant, in a stopped position in the curb lane, began to proceed once the light turned green, and struck the pedestrian in the process of doing so. The Plaintiff brought an ICBC claim for damages for pain and suffering, out of pocket expenses, and cost of future care. Liability was in dispute. The Court found the Plaintiff to be 70% responsible for the accident, and the Defendant 30%.

 

[18] When the southbound traffic began to move forward, the defendant followed. The plaintiff at that time was adjacent to the front driver’s side corner of the defendant’s car. The defendant’s vehicle may have made a very slight contact with the plaintiff before the defendant initially applied his brakes. When he placed his foot on the brake pedal, however, his foot slid off the pedal allowing his vehicle to move forward, essentially in a second forward motion. At that time, there was contact between the plaintiff and the defendant’s vehicle, and the plaintiff fell or was knocked to the road.

[63] At the heart of the determination of liability is what the plaintiff’s movements were immediately before the impact.

 

[64] There is no question that the plaintiff began his crossing of McKay Avenue outside of the crosswalk. That fact is, however, of limited relevance. What is particularly important is the condition of the pedestrian and traffic control signals, and the plaintiff’s positioning relative to the crosswalk as he moved past the center point of the road and across the southbound lanes.

 

[65] I am satisfied on the evidence that by the time the plaintiff had begun to cross those southbound lanes, the traffic signal for southbound traffic was green. All of the evidence indicates that traffic generally, including the defendant, had begun to move. Neither the plaintiff nor the defendant commented specifically on the condition of the traffic signal, but it is the only logical inference from the evidence as a whole.

 

[77] It is my conclusion that the plaintiff must bear the majority of the liability for the incident. I apportion liability 70 percent to the plaintiff and 30 percent to the defendant. An award of damages must be adjusted based on this division of liability.

In Pinsent v. Brown, the Plaintiff pedestrian emerged from between parked cars, during dark and rainy conditions. The Plaintiff did not attempt to cross at an intersection or marked crosswalk. The Plaintiff was wearing black pants, a black jacket, and dark boots. The Plaintiff alleged that the Defendant was negligent for speeding, and for not keeping a proper lookout. ICBC’S lawyer maintained that there was nothing the Defendant could have done to avoid the accident. The Defendant was not found to be liable in any way for the accident.

 

[52] Ms. Brown testified that she was familiar with the area and not distracted. She did not see Ms. Pinsent until Ms. Pinsent stepped out from behind the parked car and stepped into her path. I find that Ms. Brown was exercising reasonable care and attention. I find further that Ms. Pinsent was not visible to Ms. Brown until it was too late to avoid the accident.

[53] In all of the circumstances I have concluded that the plaintiff has not established that Ms. Brown was travelling at an excessive rate of speed or that she failed to exercise the care and attention of a reasonably prudent driver.

[54] The accident occurred while Ms. Pinsent was jaywalking. Accordingly, Ms. Brown had the right of way. Ms. Pinsent has failed to establish that after Ms. Brown became aware, or by the exercise of reasonable care should have become aware, of Ms. Pinsent’s own disregard of the law, Ms. Brown had a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself.

 

In Talbot v. Kijanowska, the Plaintiff attempted to cross a street after exiting from an alleyway. The Plaintiff had been drinking prior to the accident. The Defendant was not able to avoid hitting the jaywalker. The liability portion of the trial was severed from the quantum (amount) portion. The Court held that the Defendant was not liable in any respect, as the Plaintiff was negligent by failing to take care for his own safety.

[38]         The headlights Mr. Talbot saw upon emerging from the alleyway and upon looking to his right must have come from Ms. Kijanowska’s approaching vehicle. There were no other vehicles on the roadway at the time. Mr. Talbot was unable to explain how or why he did not see Ms. Kijanowska’s vehicle as it approached him after having first observed it about one block away. Mr. Talbot was not able to refute the defence’s theory that he had walked or run into the side of Ms. Kijanowska’s vehicle.

[39]         The only conclusion that I can draw from these unfortunate circumstances is that Mr. Talbot was simply not paying attention or having regard to his own safety when he left the alleyway and walked onto Trutch. He may very well have been distracted by listening to music on his headphones, which were observed lying on the ground next to him.

Accordingly, on the facts as I find them I cannot attribute negligence to the defendant. I conclude the accident of March 27, 2010 was caused solely by the negligence of Mr. Talbot in failing to take care of his own safety by keeping a proper lookout as he left the alleyway and walked onto Trutch and into Ms. Kijanowska’s vehicle.

 

In Sandhu v. Ahmed et al, the Plaintiff wished to cross in the middle of the street, rather than on a marked crosswalk. There were two lanes of travel in each direction. The driver of the car at the head of the curb lane traffic stopped, and motioned to the Plaintiff to cross. The Plaintiff did so, however, was then struck by a vehicle in the next lane of traffic. The Plaintiff brought an ICBC claim for damages, however the Court found the Plaintiff to be 75% at fault for the collision.

 

[16]         The statutory provisions that bear on this case are found in the Motor Vehicle Act, R.S.B.C. 1996, c. 318, s. 180, as follows:

 

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.

 

[17]         Notwithstanding the provisions of s. 180, s. 181 states as follows:

 

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, …

 

[18]         In my view, as the plaintiff was not crossing the road in a crosswalk, the plaintiff was required to yield the right of way to Ahmed’s vehicle. At the same time, Ahmed was required to exercise due care to avoid colliding with a pedestrian on the highway.

 

[19]         I find that the plaintiff 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 the defendant Ahmed was travelling, without looking to determine if a vehicle was approaching before entering that lane.

 

[20]         The defendant Ahmed was also negligent in passing two stopped vehicles when the possibility of a pedestrian attempting to cross was reasonably apparent, even if he believed that the vehicles were also intending to turn into the mall after they stopped.

 

In Wong-Lai v Ong, the Plaintiff and her husband were jaywalking when they were struck by the Defendant. The Court, however, still found the Defendant to be 25% at fault for not paying proper attention.

 

[53]           There is clearly support in the authorities for the proposition that a driver need not anticipate that other persons on the highway will act unlawfully or fail to yield the right of way when they are lawfully required to do so.  See the cases referred to by Madam Justice Dickson at para. 22 of Hmaied.

 

[54]           However, all the authorities make it clear that the statements contained within them are made in the context of the specific facts of the case under consideration.  For example the statements found in some of the cases that a driver lawfully proceeding on a highway owes no duty to persons against whom he has the right of way are often made in cases in which the innocent party is proceeding through an intersection in which he has the right of way.  In those circumstances the driver is entitled to assume that the other vehicle will yield the right of way.

 

[55]           My view is that the law is as set out in Cook v. Teh, following B.C. Electric Railway Co. Ltd. v. Farrer,1955 CanLII 43 (SCC), [1955] S.C.R. 757.  That is that, regardless of who has the right of way, both parties have a duty to exercise due care.

 

[56]             I have concluded that Mr. Ong must bear some of the legal responsibility for the accident.  The law is well-settled that a driver of a vehicle owes a duty to keep a proper lookout and to avoid exercising his or her right of way in the face of danger of which he or she was or ought to have been aware.  In some cases the expression used is that that person must avoid dangers of which he or she was aware or which were reasonably apparent.  I do not think that the defendant in this case can avoid liability merely because he did not see Ms. Lai before impact.  The critical question is whether he ought to have seen her or, in other words, whether her presence was reasonably apparent at a point when Mr. Ong could have taken steps to avoid running her down.

 

[57]             Drivers of motor vehicles are not to be held to a standard of perfection.  However I do not think that the possibility that persons may be crossing a highway at a point other than a crosswalk or intersection is so remote that a driver has no duty to take it into account in keeping a lookout.  The evidence in this case persuades me that Mr. Ong was not keeping a proper lookout immediately prior to the accident.  His own evidence is that he was not looking forward.  While it is perfectly permissible and prudent for a driver who is changing lanes to do a shoulder check I think it is also incumbent on such a driver to take the steps necessary to ensure that it is safe for him to do so.

 

[58]           I have also concluded that Mr. Ong was probably concentrating on the manoeuvre of changing lanes and on the parked car in front of him to the exclusion of keeping a proper lookout.  I therefore find that Mr. Ong was negligent and that the defendants must bear some portion of the liability for Ms. Lai’s injuries. 

 

In Walter v Plummer, the jaywalking Plaintiff emerged from the front of a parked vehicle, when he was struck by the Defendant’s motorcycle. The Defendant was not speeding, however was still found to be 40% at fault for not taking all reasonable care.

 

[40]       These cases illustrate the importance of the prevailing circumstances, either known to the defendant or foreseeable by a reasonable person in the defendant’s situation.

 

[41]         There are several significant features of the circumstances facing Ms. Plummer that serve to elevate the degree of care required.

 

[42]         The first is the reasonably foreseeable risk of jaywalking pedestrians. The defendant was aware that students frequently jaywalked across Rutland Road. Ms. White said that, in her experience, there were many jaywalking students in that area shortly after the schools are dismissed. Further, the risk was not just of any jaywalking pedestrians but of students. The fact that the foreseeable pedestrians would be students is significant because young people may take less care for their own safety than adults.

 

[43]         A second and related circumstance is that Ms. Plummer knew that the northbound lane was empty and that the vehicles in the left turn and through southbound lanes were stopped. The prospect of students jaywalking in that situation is higher than it would be if there was traffic moving in both directions.

 

[44]         Finally, and significantly, Ms. Plummer was passing a tractor-trailer unit stopped in the through lane. That truck entirely obstructed her view of the through lane in front of it. If there were pedestrians attempting to cross, it would have been apparent to her that she would not be able to see them.

 

[45]         All of these features serve elevate the degree of caution necessary to meet the standard of care. To proceed at 40 kilometres per hour passing a stationary truck in an area known to be frequented by jaywalking students is negligent. It is a situation in which a driver ought to have been proceeding in an “alerted” state, to borrow from the categories used in the perception-response studies.

 

[46]     As to Mr. Walter, he owed a duty to take reasonable care for his own safety. He breached that duty in a number of ways. He crossed other than at a marked crosswalk, and thus contrary to the statutory obligations he was under. Further, just as it should have been apparent to Ms. Plummer that she could not see crossing pedestrians, it ought to have been apparent to Mr. Walter that he could not see oncoming traffic. Finally, and most significantly, unlike Ms. Plummer who was looking where she was going, Mr. Walter did not look into the oncoming lane at all to determine if he could safely cross. His negligence is greater than that of Ms. Plummer. I apportion liability 60 percent to Mr. Walter and 40 percent to Ms. Plummer.