Who is at fault when a pedestrian is hit outside a cross-walk?

  • Each case depends on its facts – both parties might be partly at fault.
  • A driver has the right of way if the pedestrian is not in a cross-walk.
  • No matter who has the right of way both parties have a duty to exercise due care and liability will fall on a party who fails to do this.

In Wong-Lai v. Ong the pedestrians were crossing the road about 20 meters away from the intersection.  They were wearing dark clothes and crossing a major 4 lane street in the dark during a heavy rain storm.  Despite this, they would have been visible to a driver at a distance of about a block.  The driver was concentrating on changing out of the curb lane to avoid a parked car some distance ahead.  Neither party saw the other before the collision.

The judge decided that both parties were at fault.  The driver had the initial right of way, as the pedestrians were not in a cross-walk.  However, he failed in his duty to keep a proper look out and take reasonable steps to avoid apparent hazards.  The pedestrians had also failed to keep a proper look out.  They had placed themselves in an extremely dangerous position in choosing to cross at a dangerous location in poor light and weather conditions.  The pedestrians were 75% at fault, the driver 25%.

In Anderson v. Kozniuk the pedestrian started in an unmarked crosswalk, but part way across angled towards the bus stop, leaving the crosswalk.  He knew that a car was coming, but paid no attention to it.  The driver knew that pedestrian could be expected in the area due to the nearby bus stop and grocery store, but did not see the pedestrian until he was one foot in front of her car.

 The judge decided that the pedestrian was 30% at fault and the driver was 70% at fault.  The pedestrian’s fault lay in leaving the crosswalk and failing to even glance over his shoulder to determine where the oncoming car was.  By angling out of the crosswalk he lengthened his journey and entered a darker area of the street, both of which increased the risk he put himself to.  The driver’s fault was in keeping her eyes focused straight ahead and not even glancing to the sides to check for pedestrians.  The driver should have kept a careful lookout and slowed slightly since she knew about the possibility of pedestrians in the area.   The Court of Appeal affirmed the trial decision.

If you do not agree with ICBC’s assessment of liability in your collision, contact us.  We can help.

Read the cases:  Wong-Lai v. Ong

                            Anderson v. Kozniuk

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