Here are the facts: 15.8% of motor vehicle accidents lead to a pedestrian fatality and 14% cause serious pedestrian injuries. But who is at fault? Is it always the driver, or could the pedestrian be partially responsible for the accident? Our pedestrian injuries lawyers explain contributory negligence and how it can impact liability in pedestrian accidents.
In a nutshell, contributory negligence means if any of the people involved in a collision did something (or failed to do something) that:
For example, if a pedestrian crosses a street while the signal for them is red and they are involved in a car accident, they may be found contributorily negligent. The court may hold the pedestrian 35% responsible for causing the accident.
Take another example of a driver who collides with a drunk pedestrian who wanders into the road. The court may find the driver 90% responsible and the pedestrian 10% responsible for the accident.
While there is no mathematical formula that determines precise allotment of negligence, the court will examine the facts of the case and assign responsibility in accordance with all that they’ve learned regarding the accident.
In case the plaintiff (claimant) is contributorily negligent, the Ontario Negligence Act requires the court to, “apportion the damages in proportion to the degree of fault or negligence found against the parties respectively.”
In other words, the damages the defendant has to pay will be reduced by the percentage of fault attributed to the plaintiff. Returning to our examples, that means the driver in the first example will pay 65% of the compensation they may otherwise be liable for because they are 65% responsible for the accident. In the second example, the driver will have to pay 90% of the damages.
Note that this finding of fault does not impact the statutory accident benefits you are entitled to receive. Since Ontario has a system of no-fault insurance, you can claim compensation from the insurance company whether or not you were at fault.
Will My Pedestrian Accident Suit Be Settled Out of Court?
Find out how and why injury lawsuits usually settle outside of court
[Learn More about How Personal Injury Settlements Work]
It’s too common seeing drivers distracted behind the wheel today (such as talking on the phone) or driving recklessly. Even if a driver is not primarily responsible for the accident, negligent behaviour before the accident may be found to have contributed to the accident.
Some factors that can make a driver contributorily negligent are:
The Highway Traffic Act places a “reverse onus” on drivers, too, stating “the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.”
That means the motorist is, effectively, presumed responsible for the accident unless they can prove that they acted reasonably and appropriately. A pedestrian, on the other hand, simply has to prove they were injured in the accident.
Shannon and Her Parents Didn’t Give Up After a Life-Altering Car Accident…Nor Should You
Though the onus lies on the driver to prove they were not negligent, it doesn’t mean pedestrians are not accountable for their actions.
In Gellie v Naylor and Laidlaw Transport, the Court of Appeal held a driver “may assume that pedestrians as well as other motorists will not act unreasonably and foolishly.” It opened the gates for contributory negligence for pedestrians; courts now hold pedestrians contributorily negligent for:
Establishing fault in a pedestrian accident isn’t always black and white, an experienced personal injury lawyer will tell you. Even if you are the victim, don’t be surprised if the other party tries to lay the blame on you in an attempt to reduce the compensation they have to pay.
If you have been involved in a pedestrian accident, whether as the driver or the pedestrian, it’s highly advisable you contact a pedestrian accident lawyer in Richmond Hill.
The sooner your pedestrian injuries lawyers start investigating your accident, the greater your chances can be to achieve the best possible outcome (for instance, witness memories will be fresher and the police will be more actively involved as well).
Schedule a free, no-obligation consultation today to discuss your pedestrian accident. Our pedestrian accident lawyers in Richmond Hill and Toronto will fight for the maximum compensation and medical care you are entitled to.
We will not charge you unless your case is successful.
At Neinstein we have been advocating for injured victims for over 50 years. Our committed and compassionate team will do everything necessary to help you and your family find solutions to the new challenges that arise from serious injuries.
Our team will ensure you access the proper healthcare support to aid in your recovery. While you focus on your rehabilitation, we will thoroughly investigate your case and guide you through the litigation process so we can achieve the maximum compensation that you deserve.