60/40 Liability Split After Pedestrian Steps in Front of Bus

Corrected reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing fault between a pedestrian and a bus driver.
In today’s case (Whelan v. BC Transit) the Plaintiff pedestrian “was struck and had his foot run over by a BC Transit bus driven by the defendant Henry Kobbero, after Mr. Whelan had stepped onto the road to avoid some other pedestrians on the sidewalk.”
The bus was stopped shortly before the incident dropping off passengers and moved forward with the driver seeking to merge back with traffic.  Mr. Justice Schultes found both parties were to blame with the Plaintiff bearing the lion’s share of fault.  In reaching this decision the Court provided the following reasons:
[71]         On all the evidence I am satisfied that there was a period of time, of more than transitory length, during which the bus was travelling forward, still in the curb lane, but the focus of Mr. Kobbero’s attention was on his left mirror and the act of merging. It was during this period that Mr. Whelan stepped out on the road and, had Mr. Kobbero’s attention been prudently apportioned between merging and the curb lane in front of him, he could have seen and reacted to the pedestrian in time of avoid a collision. His focus on merging reflected an assumption, which I find was not reasonable in light of his overall awareness of the range of pedestrian hazards, that his forward check earlier in the process was sufficient. However briefly, I conclude that he did fall below his required standard of care.
[72]         As was obvious from my earlier comments in this discussion, Mr. Whelan was himself contributorily negligent in this accident. In addition to his disregard for the bus’s right of way and his needless decision to place himself onto the travelled portion of the roadway simply to avoid a moment’s pause in his progress, he made an assumption that was even less grounded in objective fact than Mr. Kobbero’s — that the driver checking his shoulder meant that the bus would have moved into the left lane before it reached the area where he stepped off the sidewalk…
75]         I would characterize Mr. Kobbero’s lapse of care in conduct as falling more towards the momentary or minor end of the spectrum than towards the extremely careless end. I have found that it was a decision to focus his attention fairly briefly on an admittedly more pressing task, based on the faulty assumption that there were no risks directly ahead of him. This was not the kind of lapse that was inevitably going to cause harm; it required a pedestrian to do one of the foolish things that Mr. Kobbero has been trained to expect in order for that to happen. I conclude that Mr. Kobbero should bear 40% of the liability for this accident.
[76]         Mr. Whelan’s actions conversely, demonstrate a higher degree of carelessness. 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. Accordingly I fix his liability at 60%.