Tag: section 132 motor vehicle act

Pedestrian Struck in Crosswalk on "Dark and Rainy" Night Not Contributorily Negligent

Adding to this site’s archived cases discussing fault for pedestrian collisions, reasons for judgement were released recently addressing contributory negligence of a pedestrian struck in a marked crosswalk.
In the recent case (Bulatovic v. Siebert) the Plaintiff was struck while crossing Granville Avenue in Vancouver.  She had passed the midway point of the street when struck by the Defendant who was making a left hand turn.

Although there was contradictory evidence about the circumstances of the crash the Court ultimately found that the Plaintiff lawfully entered the crosswalk with a walk signal in her favour and that there was no evidence of contributory negligence.  In finding the Plaintiff faultless for the collision Mr. Justice Steeves provided the following reasons:
[82]         More generally, the reason for the legal protection of pedestrians in crosswalks is the significant inequality in speed and force between a motor vehicle and a pedestrian. A pedestrian is entitled to walk through a crosswalk, taking reasonable precautions consistent with having the right of way, knowing that she is safe. I find that the plaintiff took those precautions and she is entitled to the legal protection of having the right of way under section 132(1) of the Motor Vehicle Act.
[83]         I also adopt the comments of a previous judgement (Hooper v. Nair, 2009 BCSC 862 at para. 32),
I accept the plaintiff’s submission that in order to prove that a plaintiff pedestrian was contributorily negligent, the defendant driver bears the onus of establishing not only inadequate attention on the part of the pedestrian but also must show that by the time the pedestrian realized the driver was not going to yield the right-of-way to the pedestrian, that it would at that point have been possible for the pedestrian to avoid the driver’s car. As well, the driver must show that a reasonable person in the circumstances of the pedestrian would have taken and succeeded in actions which would have avoided impact with the driver’s car:  Olesik v. Mackin (23 February 1987), Vancouver B860365 (S.C.); Pinto v. Rana, [1993] B.C.J. No. 1312 (S.C.).
[84]         I find that the plaintiff stepped into the crosswalk on Granville Avenue, going south, when the pedestrian signal said “Walk”. I accept her evidence that she pushed the button that controlled the pedestrian light and she waited for it to turn to “Walk”. Again, her evidence on this point was not directly challenged. The evidence and submissions that the plaintiff took inadequate attention or could have somehow avoided the accident are not, in my view, persuasive. More persuasive, is the defendant’s evidence that he could have looked to his left in order to see the plaintiff.
[85]         It follows from Section 132(1) and my findings above that the plaintiff entered the crosswalk with a “Walk” signal, that she had the right of way over all vehicles, including the defendant. It also follows that the defendant was negligent in not looking for pedestrians in the crosswalk when he made his left turn. To be clear, I do not find that the plaintiff was contributorily negligent.

Driver 25% at Fault for Striking Jaywalking Pedestrian

As previously discussed, having the right of way is not determinative of fault for a collision.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, demonstrating this in the context of a pedestrian crash.
In last week’s case (Murdoch v. Biggers) the Plaintiff was crossing Blanshard Street in a marked cross-walk.  She did so against a red light.  There were 3 oncoming through lanes of travel.  The vehicles in the first two lanes stopped for the jaywalking Plaintiff.  The vehicle in the third lane did not stop in time and collided with the Plaintiff resulting in a broken right leg.

The Court found that while the motorist had the right of way they shouldered some of the blame for failing to keep a proper lookout.  In assessing the Plaintiff 75% at fault and the Defendant 25% at fault Madam Justice Power provided the following reasons:
[33] In this case, I do not believe that the defendant exercised the appropriate standard of care to avoid breaching that duty. The drivers in vehicles in the two lanes to her right were able to observe and stop for the plaintiff, and a driver behind her (Ms. Larson) was able to see Ms. Murdoch. Mr. Lukinuk was able to observe that something was happening in his rear-view mirror. In the circumstances, I find that the defendant failed to keep a proper lookout by failing to observe Ms. Murdoch’s entry into the crosswalk and by failing to observe that vehicles in the two lanes to her right had stopped for Ms. Murdoch. I find that if the defendant had in fact been keeping a sufficient look out, she would have been able to stop for Ms. Murdoch and avoid the collision…
[36] In all of the circumstances, I conclude that the 75% of the fault for the accident should be borne by the plaintiff and 25% by the defendant.

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ERIK
MAGRAKEN

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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