The Highway Traffic Act governs the use of the roadway by drivers and pedestrians. There is statutory protection for pedestrians despite any negligence on their own behalf.
The Act covers the onus of disproving negligence, which clearly states “when loss or damage is sustained by any person by reason of a motor vehicle… the onus of proof… is upon the driver.”
This affords some protection for pedestrians in a civil action for damages.
Drivers must disprove their own negligence, which is an uphill battle most of the time.
Distracted driving causing accidents more often
Pedestrians are often victims of distracted driving, speeding or carelessness, even where a pedestrian is negligent herself. New penalties in Ontario and across North America are giving distracted driving a significant amount of attention by law enforcement.
And for good reason.
The past year has been a particularly dangerous year for pedestrians, with record numbers of accidents involving vehicles being reported in the Toronto area.
There is no reason to believe this problem does not exist elsewhere in Ontario either. CBC published a report in 2013 highlighting mid-size cities like Hamilton are perhaps the most dangerous for pedestrians.
The pain and suffering inflicted on an individual struck by a vehicle can be severe, and the risk of death is also high, as has been seen repeatedly. Even driving below the speed limit can cause devastating injuries on impact.
A report in The Globe and Mail indicates 46 pedestrians were struck and killed by motor vehicles in Toronto in 2016. That’s up from 39 last year and 40 in 2014. On a single day in December, 24 people were hit by vehicles while walking in the province’s capital.
Smartphones are not to blame
Some argue a rise in smartphone use among pedestrians may be partly to blame.
However, a study done in the United States found that only 0.1 percent of pedestrian deaths over a five-year period were attributable to pedestrians being distracted by an electronic device.
In fact, among the most common causal factors in pedestrian accidents are distracted drivers. Alberta Transportation claims distracted drivers are three times more likely to be in an accident than attentive drivers.
Pedestrian accidents occur often in non-marked areas of the roadway. This adds to the potential for pedestrian injuries. It increases liability on the person walking, but should not relieve the driver of responsibility.
Do you have a case for a pedestrian accident?
Here are some factors to consider in evaluating whether a pedestrian injury supports a viable civil action for compensation.
- The location of the collision – a crosswalk is the best location for a pedestrian but any other location could be actionable depending on driver action and sight lines.
- Traffic signals and signage – poor signage or poor visibility could mean municipal liability. An unsafe street design can also play a factor.
- Road and weather conditions – could mean a requirement to slow down below the speed limit or could mean municipal liability
- Speed of the vehicle – very crucial at all times and perhaps the most important factor
- Skid marks or evidence of slowing down is important as to whether the driver was paying attention
- Location of other vehicles
- Windshield obstructions (e.g. GPS or smartphone holders attached to the front window)
- Amount of traffic – heavier traffic warrants more careful driving
- Location of impact – near the curb, halfway across, in a median, in the centre of the roadway
Cities working to reduce pedestrian accidents
Some municipalities are introducing highly visible marked crosswalks or crossovers, which empower pedestrians and increase the responsibilities of a driver.
Every pedestrian however already has the protection of the Highway Traffic Act and this should be considered in all pedestrian/motor vehicle cases.
Even uninsured pedestrians can apply to the vehicle owner’s insurer even if that person is not negligent. These benefits have recently been reduced but still may help with medical rehabilitation or income loss.
