Medical Malpractice & Personal Injury Blog

The Car-Pedestrian Accident: When a crosswalk isn’t used, who is to blame?

Nov 23

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11/23/2015 11:46 AM  RssIcon

Although hitting a pedestrian while driving a vehicle is frightening and can be traumatic, it is not uncommon. Over the last few years, car-pedestrian accidents have been a recurring topic in local newspapers, especially in the Halifax area. Many assume that the driver is not at fault if the pedestrian was walking outside a crosswalk when hit, this is not always the case.

The person at fault for a car-pedestrian accident is generally determined by the law of negligence. Essentially, a person who fails to exercise a reasonable duty of care under the circumstances may be considered negligent. Under section 125 of the Motor Vehicle Act, the driver of a motor vehicle must yield the right of way to a pedestrian within a crosswalk. However, a pedestrian crossing a roadway at any point other than within a crosswalk must yield the right of way to any vehicles. Notwithstanding these provisions, the driver of a vehicle and the pedestrian are not relieved from their duty to exercise care. An accident can be found to be entirely the pedestrian’s fault, entirely the driver’s fault, or both can be held responsible. Ultimately, it is up to the defendant to prove that he or she was not solely responsible for the accident.

For example, in Simpson Estate v Cox, 2006 NSSC 84, an 81-year-old woman was crossing Fraser Avenue, a residential street in Sydney Mines at approximately 9:30 pm. The street was dark with streetlights on, and the 81-year-old pedestrian was wearing dark clothing. She made it approximately 70% of the way across the street before she was hit by the defendant’s car. She was not walking within a crosswalk. Reconstruction experts were hired by both parties, and they agreed that the 81-year-old would have been able to stop crossing the street when she saw the vehicle if she had exercised due care, and could have avoided the accident altogether. At the same time, the court found that the driver could have spotted the pedestrian sooner and stopped her vehicle if she was taking due care. The court attributed 40% fault to the driver and 60% fault to the pedestrian.

In essence, every case depends on the facts. The court will consider all the facts before allocating fault and determining whether a pedestrian who was walking outside a marked crosswalk is entitled to compensation for the accident.