A person who has been injured as a result of the negligence of another person is entitled to compensation. The general rule is that the injured person has the responsibility (or onus) of proving the defendant’s negligence. This general rule does not apply to cases involving pedestrians struck by drivers of motor vehicles.
Ontario’s Highway Traffic Act says that if you are a driver and you hit and injure a pedestrian you must prove that you are not negligent in order to escape liability. This is known as a “reverse onus” provision. It is a departure from the general rule that the injured person must prove the defendant’s negligence.
What this “reverse onus” provision means is that drivers seldom escape liability where they hit pedestrians. The law recognizes that drivers have a special duty to look out for pedestrians. It also recognizes that pedestrians are particularly vulnerable to serious injury if they are struck by motor vehicles.
This does not mean that pedestrians bear no responsibility for their own safety. In cases where the pedestrian was jay-walking at the time of the collision, the pedestrian may be found to be contributorily negligent. In cases where both the driver and the pedestrian are negligent, the Court will allocate fault as between them. A pedestrian who is found to be 25% at fault for his or her injury is only entitled to recover 75% of his or her damages.