Liability in a pedestrian knockdown case is rarely straightforward. The straightforward cases involve a pedestrian crossing the street in a crosswalk, on a green light, and after they activate the pedestrian cross signal. The driver then proceeds through the intersection, failing to see what is clearly there to be seen, and strikes the pedestrian. In reality, this scenario plays out far too often than it should. In these types of cases, the Highway Traffic Act establishes liability against the driver. Section 144(7) of the Act provides that a driver shall yield the right of way to pedestrians lawfully within a crosswalk. There are no exceptions to this rule. After all, drivers have a duty to keep a proper lookout. They cannot drive while distracted, while using an electronic device or while under the influence of drugs/alcohol, all of which impair their ability to perceive and react to a pedestrian on the road. If a driver fails to see a pedestrian who is lawfully in a crosswalk, then liability will follow.
But what happens when the pedestrian is not “lawfully” within a crosswalk? Does that mean the driver can proceed with impunity? Thankfully the answer is no. While jaywalking is prohibited under the Highway Traffic Act, the act of jaywalking is only one factor a Court will take into account when determining fault between a driver and a pedestrian. Factors such as visibility, lighting, weather, road conditions, and the condition of the driver and the pedestrian are all taken into account. Ultimately, both the driver and the pedestrian have a duty to not place others at risk of injury. The risk of injuring someone else is much greater for the driver of a motor vehicle than it is for a pedestrian and as such, there is a heavy onus on drivers to avoid striking pedestrians. In most cases, a driver will be found partly at fault even if a pedestrian was jaywalking, provided the driver had sufficient time and distance to come to a stop or avoid the pedestrian.
When Rob Durante was called to the bar in 1997, he had been articling for a year with a law firm that specialized in defending insurance companies in personal injury cases. “I developed a sense of wanting to right injustices,” he recalls. “I didn’t want to work for the insurance companies… For me, it’s all about achieving justice for clients, righting wrongs and arranging fair compensation.” Rob joined Oatley Vigmond that same year and has been advocating for seriously injured clients and their families ever since.