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Pedestrian Trying to Catch Bus Found 30% Liable for Accident

In the recently published case of Anderson v. Kozniuk, 2011 BCSC 1678, Madam Justice Russell considered whether a pedestrian was at fault for an accident that occurred in January 2008 on Twelfth Street in New Westminster.  The plaintiff was injured when he was struck by a car as he crossed the street to catch a bus.  The plaintiff cut the corner and made an arc to his left to walk to the bus stop.  The greater part of his walk was outside the unmarked crosswalk. 


The Duty of a Driver to Maintain a Proper Look-Out


Justice Russell found the pedestrian plaintiff 30% at fault for the accident and the defendant driver 70% at fault.  In doing so the judge noted the following:


[67]         Following the jurisprudence in this province, it appears that there is a common law, as well as a statutory duty on a driver to maintain a proper look-out so that he/she can anticipate risk, even where that driver has not seen the hazard…


[68]         …there is a duty upon motorists and pedestrians alike to be vigilant for a reasonably apparent potential hazard.


[69]         When a driver approaches a crosswalk where she has some degree of knowledge and experience that pedestrians approaching the bus stop or the grocery store may be crossing, she should take the precaution of maintaining a careful look-out and slightly reducing her speed.


With respect to the actions of the defendant driver, Justice Russell noted that the very presence of a marked crosswalk should have been an indication of the possible presence of pedestrians in the area. She found that had Ms. Kozniuk (the defendant driver) taken these steps, it was possible she would have seen the plaintiff before the last second, when it was too late to avoid him:


[70]         Her evidence was that her attention was focused directly ahead on the roadway. While the standard required of a driver is not that of perfection, she ought to have been able to glance to the periphery to check that there were no pedestrians in the roadway.


The Obligation of a Pedestrian to Take Care for his Own Safety


With respect to the actions of the plaintiff pedestrian, Justice Russell noted that Mr. Anderson also had the obligation to take care for his own safety in his use of the road that morning. The court held that if he had crossed in either the lighted crosswalk or within the informal boundaries of the unmarked crosswalk, it was possible Ms. Kozniuk would have seen him. The court also found that had he remained in the boundaries of the crosswalk, his journey to the curb on the opposite side of the street would have been shorter and he may have been able to avoid the car entirely. The court found that by “angling across towards the bus stop”, the plaintiff was on the roadway for a longer period of time than he would otherwise have been the case.


Justice Russell also noted that by leaving the crosswalk, the plaintiff entered a darker area of the street, thus heightening his own risk as a pedestrian that the oncoming driver might fail to see him.  She noted that the plaintiff failed to even glance over his shoulder as he left the confines of the crosswalk to locate the car he had earlier noticed approaching from the north on 12th. She further stated that the plaintiff’s awareness of the presence of an approaching vehicle ought to have alerted him to the necessity of “checking its proximity to him”.


Accordingly, Justice Russell held as follows:


[75]         I find that both parties bear fault in this accident. Ms. Kozniuk had reason to look for pedestrians in the area of the crosswalk and the bus stop and she failed to keep a proper lookout. Therefore, her negligence resulted in hitting the plaintiff.


[76]         The plaintiff left the relative safety of the crosswalk to jaywalk towards the bus stop at a quick pace on a dark, wet street without looking over his shoulder to locate the oncoming vehicle which he had earlier noticed as he began crossing. The defendant has satisfied me that the plaintiff’s failure to take care for his own safety was a proximate cause of the accident.


[77]         The apportionment of liability required by s. 1(1) of the Negligence Act is fact-driven. I must determine “the degree to which each person was at fault”. 


[78]         In reviewing the cases put before me by counsel…I have determined that the relative degrees of blameworthiness should be as follows: 30% to the plaintiff and 70% to the defendant.


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