Pedestrian Struck in Cross Walk Found 75% At-Fault for Crossing Against "Don't Walk" Signal
Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, awarding a Plaintiff just over $10,000 for injuries and losses sustained in a cross-walk collision.
In today’s case (Furness v. Guest) the Plaintiff pedestrian was struck by the Defendant’s vehicle as he was trying to cross Nicol Street in Nanaimo, BC. When the Plaintiff stepped off the curb to cross the street the “don’t walk” signal was flashing but he was not aware of this. The Defendant was stopped in a tractor-trailer waiting for a green signal. As the Plaintiff walked in front of the Defendant’s vehicle an advance green arrow illuminated permitting the Defendant to start driving. The Defendant did not see the Plaintiff and struck him with his vehicle.
Both liability (fault) and quantum (value) were at issue in this trial. Mr. Justice Halfyard held that the Defendant driver was careless for failing “to keep a proper lookout” and for failing to see the Plaintiff who was “there to be seen“.
The Plaintiff acknowledged that he was also partially at fault. The Court was asked to determine how much each party was to blame. Mr. Justice Halfyard found that the Plaintiff was more at fault and apportioned his blame at 75%. In reaching this distribution of fault the Court reasoned as follows:
[58] I find that the plaintiff’s degree of fault for the accident is considerably greater than the degree of fault of Mr. Guest. There is no legal formula for determining how fault for an accident should be divided. Counsel for the plaintiff referred me to a number of authorities in support of his submission that Mr. Guest should bear the far greater fault for the accident. Of course, the evidence and the findings of fact are different in all cases. As a consequence, previously-decided cases are of limited assistance at best. I found the cases of Funk v. Carter 2004 BCSC 866 (Williamson J.) and Morrison v. Pankratz 1991 CarswellBC 1765 (Shaw J.) to be of some assistance, particularly in the discussions of the general principles.
[59] In my opinion, liability should be apportioned as to 25% against Mr. Guest, and 75% as against Mr. Furness, and I so order.
The Court then dealt with the value (quantum) of the Plaintiff’s claim. The Plaintiff’s injuries and their course of recovery were summarized as follows:
[60] Most of the injuries sustained by the plaintiff are not in dispute and I find them to be the following:
a) undisplaced fracture of the posterior aspect of the medial femoral condyle of the right knee;
b) tiny fracture of the very lateral aspect of the lateral tibial plateau, which was undisplaced;
c) injury to the soft tissues in and around the right knee joint including a tear of the posterior horn of the medial meniscus;
d) other minor contusions and abrasions.
[61] The plaintiff complained of ongoing pain in his right ankle, which he attributes to the accident of February 13, 2007. ..
[81] I find that, by the time of trial, the plaintiff had substantially recovered from the injuries he sustained in the accident of February 13, 2007. There is no medical opinion evidence which causally connects the plaintiff’s present complaints to his injuries of February 13, 2007. Nor is there any evidence of objective medical findings that confirm the plaintiff’s ongoing complaints of pain in his knee. In these circumstances, I am not satisfied that the necessary causal connection between the accident and the plaintiff’s present complaints of physical pain has been proved. However, I do accept that the plaintiff is still experiencing some intermittent psychological effects from the accident, in the form of nightmares and fear of crossing the street. I find that these psychological effects are diminishing, and should not persist for much longer. The evidence does not establish a real and substantial possibility that these psychological symptoms will persist well into the future.
Mr. Justice Halfyard valued the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $40,000. The Court then reduced this award by 75% to take into account the Plaintiff’s own blame for his injuries.