02 Jan Pedestrian Found 25% Responsible for Accident

Sometimes pedestrians are found contributorily negligent when they are hit by a motor vehicle.  That was the case in Howell v. Machi, 2017 BCSC 1806. The Plaintiff jaywalked between eastbound cars which had stopped for a red light on a busy street in Vancouver.  After safely navigating the two lanes of stopped traffic, she started to cross the westbound lanes that had stopped and was struck by an eastbound pickup truck in the left turn lane.

To access the left turn lane the Defendant driver of the pickup truck must have travelled, at least in part, the wrong way in the westbound lanes and over a yellow painted traffic island. The Defendant did not stop after striking the Plaintiff.

ICBC asked the Court to find the Plaintiff at least 50% at fault for the accident. By contrast, the Plaintiff asked that the Court find no contributory negligence on her part, or no more than 5% if it found any.

The rights of way between vehicle and pedestrian are regulated by the following sections of the Motor Vehicle Act:

  1. 179 (1) Subject to section 180, the driver of a vehicle must yield the right of way to a pedestrian where traffic control signals are not in place or not in operation when the pedestrian is crossing the highway in a crosswalk and the pedestrian is on the half of the highway on which the vehicle is travelling, or is approaching so closely from the other half of the highway that he or she is in danger.
  2. 179(2) A pedestrian must not leave a curb or other place of safety and walk or run into the path of a vehicle that is so close it is impracticable for the driver to yield the right of way.

s.180  When a pedestrian is crossing a highway at a point not in a crosswalk, the pedestrian must yield the right of way to a vehicle.

  1. 181 Despite sections 178, 179 and 180, a driver of a vehicle must

(a) exercise due care to avoid colliding with a pedestrian who is on the highway,

(b) give warning by sounding the horn of the vehicle when necessary,…

 

In the Howell case, neither party had the right of way as both parties contravened the Motor Vehicle Act. The Judge had to decide the extent to which the Plaintiff and the Defendant, both of whom contributed to the accident, fell short of the standard of care required of them.

In considering the Plaintiff’s negligence, the Judge noted that:

  1. The Plaintiff did not cross in a crosswalk or at the intersection, in busy traffic during rush hour;
  2. The Plaintiff was wearing a burgundy jacket and a grey toque which made her less visible;
  3. The Plaintiff did not hear the pickup truck, although an eyewitness did so from further away and across the street. She did not look to her left before stepping forward from in front of the stopped SUV. This likely hid her from view of anyone approaching the left turn lane and also prevented her from seeing the Defendant approaching;
  4. Despite not being a driver herself, the Plaintiff should have been aware of the possibility that a driver might breach the Motor Vehicle Act to access the left turn lane.

The Judge concluded that the Plaintiff was 25% at fault for the accident and the Defendant 75% at fault.  As a result, all damages awarded to the Plaintiff (with the exception of the punitive damages award) were reduced by 25%.