If a pedestrian is injured by a motor vehicle, one would assume that the driver will be held liable, right?
In fact, depending on the circumstances, a pedestrian may be found partially or even completely responsible for the accident. The Alberta Traffic Safety Act sets out the legal standard in this respect.
Pursuant to section 186 of the Act, the driver bears the onus to establish that the pedestrian’s injury did not entirely or solely arise through the driver’s negligence or improper conduct. As the Alberta Court of Queen’s Bench found in Yurchi v Johnston, 2006 ABQB 25, this section creates a rebuttable presumption of driver liability. The driver can rebut the presumption if the evidence demonstrates that the pedestrian contributed in a material way to the accident, and that the driver could not have avoided it by exercise of reasonable care.
In Murhula v Yetman, 2010 ABQB 655, the Alberta Court of Queen’s Bench held that a driver must anticipate reasonably apparent risks and exercise reasonable care in the circumstances. A pedestrian not following the rules of the road is not enough on its own to absolve the driver of this responsibility. However, the standard is not one of perfection.
There are several examples in Alberta case law where a pedestrian has been held partially or fully responsible for an accident.
The accident in Yurchi occurred at an intersection during heavy rush hour traffic. The pedestrian was wearing dark clothing, and neither he nor the driver saw each other before impact. He was rushing across the street to catch a bus and walked into the side of the driver’s vehicle. The court found the driver 2/3 liable and the pedestrian 1/3 liable. The pedestrian was in an unmarked crosswalk at the time of the collision, and the driver was preoccupied by navigating around a bus. He did not pay adequate attention to the potential of a pedestrian crossing. The pedestrian, by walking quickly in dark conditions without adequate attention to his surroundings, materially contributed to the accident.
Murhula involved a pedestrian who hit the side of a vehicle after alighting from a bus and rushing across the middle of a street without looking. The collision took place at night, and the passenger was wearing dark clothing. The court dismissed the action, finding that the driver discharged the onus under the Act. She was driving with care, it was impossible for her to see the pedestrian, and there was nothing she could have done to prevent the collision. Even if she had seen the pedestrian and stopped, he still would have struck her vehicle. Had the pedestrian looked for oncoming traffic before rushing across the street, he would have seen the driver.
The pedestrian in Bouchard (Estate of) v Chalifoux, 2004 ABQB 877, tried to run across a busy highway without looking. He was hit by the driver at high speed, sadly killing him. The court found that due to the volume and speed of the traffic, it was a vital responsibility for the pedestrian to carefully assess the traffic flow before crossing. The driver exercised reasonable care in the circumstances. When he saw the pedestrian’s car parked on the shoulder, he slowed down but did not see the pedestrian until the last possible moment. Consequently, the Court concluded that the driver was not even partially responsible for the accident.