More on the Standard of Care When Driving Near Children

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized.


As I’ve previously written, children can be unpredictable.  Accordingly drivers need to use extra care when passing by children otherwise they can be found liable for an accident in circumstances where their actions may not otherwise be considered careless.  In legalese, the presence of children raises the ‘standard of care‘.  Reasons for judgement were released today discussing this area of law in an unsuccessful personal injury lawsuit.
In today’s case (Chen v. Beltran) the Plaintiff was involved in an unfortunate accident in New Westminster, BC in 2006.  The 11 year old Plaintiff was lying on a skateboard travelling down a steep hill.  The Plaintiff lost control and entered an intersection against a red light.  He was struck by an oncoming motorist and was injured.
The Plaintiff’s lawyer agreed that the Plaintiff was at fault for this accident but argued that the driver was partially at fault as well.  Mr. Justice Greyell disagreed and found the Plaintiff was fully at fault for the incident.  Before dismissing the case, however, Mr. Justice Greyell summarized the standard of care imposed on motorists when driving by children.  The Court stated as follows:

[25] The law to be applied in determining the duty of a driver when there are children in or about the area was set out by Hood J. in Bourne (Guardian ad litem of) v. Anderson, [1997] B.C.J. No. 915, 27 M.V.R. (3d) 63 (S.C.) at paras. 55 and 56:

55 In my opinion, once the presence of a child or children on a road is known, or should have been known, to the driver of a vehicle proceeding through a residential area where children live, that driver must take special precautions for the safety of the child or children seen, and any other child or children yet unseen whose possible appearance or entrance onto the road is reasonably foreseeable. The precautions include keeping a sharp look out, perhaps sounding the horn, but more importantly, immediately reducing the speed of the vehicle so as to be able to take evasive actions if required.

…

The above standard of care has been followed in numerous subsequent decisions:  see for example, Hixon (Guardian ad litem of) v. Roberts, 2004 BCCA 335; Mitchell (Guardian ad litem of) v. James, 2007 BCSC 878; Johnson v. Eyre, 2009 BCSC 1711.

[27] The general principle underlying any determination of fault or blameworthiness rests on a finding whether the defendant could reasonably foresee that his or her conduct would cause or contribute to the accident.  When it is known there are young children in the area drivers must use extra care and attention as children do not always behave as adults would in similar circumstances.  In Chohan v. Wayenberg (1990), 67 D.L.R. (4th) 318 (B.C.C.A.), the Court of Appeal stated at 319:

… There is, of course, a need for constant vigilance for children on the roads, especially in suburban areas, for the very reason that they can not be expected always to act with the same care that is expected of adults.

While this greater standard of care ultimately did not assist the Plaintiff in succeeding in his lawsuit, this case demonstrates that our Courts will place greater scrutiny on the actions of a driver when they are driving by an area where there are children.

Chen v. Betran, Children, Duty of Care, Infants, Mr. Justice Greyell, Standard of Care, Standard of Care when driving by children

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ERIK
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Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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