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Pedestrian Wins Appeal as Judge Fails to Consider Driver’s Fault

Marked Crosswalk accidents

Even the most experienced personal injury lawyers need to pay attention to this case. The Court of Appeal has made it clear: When finding a pedestrian 100% at fault the court must analyze not only the pedestrian’s duty but also the driver’s duty of care (Vandendorpel v. Evoy, 2016 BCCA 270). Statutory provisions and the duties imposed by the common law on the driver, including a duty to exercise due care, to keep a proper lookout, and to take precautions when there is an apparent hazard, should have been considered and reviewed.

The pedestrian appealed from the order of the trial judge dismissing his claim arising from this motor vehicle/pedestrian accident. The claimant was walking to work in Colwood, British Columbia dressed in dark clothing, including a dark hooded pullover that was zipped up. He was also wearing headphones and listening to music. It was dark outside and the roadways were wet as it had rained overnight. The claimant was running late. once the claimant activated the pedestrian control device, the pedestrian traffic control signal continued to display the do-not-cross sign for at least another 10.5 seconds; however, claimant waited only approximately 1.5 seconds before crossing and being hit.

However, the mistake the trial judge made was not assessing the behaviour of the driver who has been driving 5 Km over the speed limit.  The trial judge, mistakenly did not go on to determine the question of causation because he found that the driver met the duty of care.  As the Court of Appeal put it:

[21]  In this case the matter turns on, inter alia, the application of legal standards to a set of facts. Those standards include the provisions of the Act and the common law standards owed by drivers and pedestrians to each other. In general, the application of a legal standard to a set of facts is a question of mixed fact and law. In this case, however, the relevant provisions of the Act were analyzed in respect of the actions of one party, the pedestrian, but not the other, the driver.

As a result, the Court allowed the appeal and remitted the matter to the same trial judge to reconsider these matters.

Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

Tags: At Fault, liability, Negligence, Pedestrian accident

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