Judge Apportions 75% of Fault to Jaywalking Plaintiff 25% to Distracted Driver

Prior Street at Gore & Dunlevy

In the recently published case of Wong-Lai v. Ong, 2011 BSCS 1260, Mr. Justice Sewell weighed the relative obligations of pedestrians and drivers in a tragic case in which an elderly couple were struck by a motor vehicle as they attempted to cross Prior Street in Vancouver between Gore & Dunlevy. One of the pedestrians (Mr, Lai) died as a result of his injuries, Mrs. Lai suffered severe and disabling injuries. The court found that none of the parties involved in the accident were aware of the impending collision until the instant it happened. Sadly, the accident could have been avoided had the Lais crossed Prior Street at a controlled pedestrian crosswalk less than a block away from where the accident occurred. The critical facts were summed up by the court as follows:

[24] I find that Mr. and Ms. Lai were attempting to cross Prior Street approximately 20 metres to the west of the intersection of Prior and Dunlevy. I also conclude that they were in somewhat of a hurry to cross the road. It seems to me that the most likely scenario is that either Mr. and Ms. Lai assumed that they could safely cross in front of the oncoming smart car driven by Mr. Ong but they misjudged the amount of time and space that they had to successfully get across, or Ms. Lai was distracted by her efforts to hurry her husband along and did not notice the approaching car.

 

[32] In this case there is no question that Ms. Lai and her husband were crossing a major road on a dark night when visibility was very poor. They were wearing dark clothing. However, I am also satisfied, based on the evidence of Mr. Smith and on the evidence of the defendants’ expert Mr. Richards, that Mr. and Ms. Lai were visible, and could have been seen, by the driver of a vehicle coming off the Georgia viaduct when they were at the midpoint of the road.

 

[36] I also conclude that from the time he observed the parked car in the lane of Prior in which he was travelling Mr. Ong’s attention was directed to completing the manoeuvre of changing lanes. I find that Mr. Ong would have been able to see the plaintiff and her husband crossing Prior Street had he been keeping a lookout for pedestrians crossing at that point. I find that Mr. Ong was travelling at a speed of between 55 and 60 kilometres per hour and that his attention to other hazards of the road ahead was significantly distracted by his manoeuvre of changing lanes.

 

[45] I therefore conclude that the Lais were at the middle of Prior Street when the car was at least as far west as the intersection of Gore and Prior, that the Lais were moving at a speed greater, but not significantly greater than 1.2 kilometres per hour, that the smart car was travelling at a speed of close to 60 kilometres per hour in the time up to and including striking the pedestrians. I also find that the presence of the Lais at the midpoint of Prior Street would have been reasonably apparent to the driver of a car crossing the intersection of Gore and Prior if the driver had been keeping a proper lookout.

The defendants’ lawyer argued that the elderly couple were running across the road, but this was rejected due to the fact that the defence had lead “no evidence to support this submission”.

Legal Analysis in Jaywalking Injury Case

With respect to the law, Mr. Justice Sewell held that, regardless of who had the “right of way”, both parties had a duty to exercise due care. On this point he said the following:

[56]I have concluded that Mr. Ong must bear some of the legal responsibility for the accident.The law is well-settled that a driver of a vehicle owes a duty to keep a proper lookout and to avoid exercising his or her right of way in the face of danger of which he or she was or ought to have been aware. In some cases the expression used is that that person must avoid dangers of which he or she was aware or which were reasonably apparent. I do not think that the defendant in this case can avoid liability merely because he did not see Ms. Lai before impact. The critical question is whether he ought to have seen her or, in other words, whether her presence was reasonably apparent at a point when Mr. Ong could have taken steps to avoid running her down.

[57] Drivers of motor vehicles are not to be held to a standard of perfection. However I do not think that the possibility that persons may be crossing a highway at a point other than a crosswalk or intersection is so remote that a driver has no duty to take it into account in keeping a lookout. The evidence in this case persuades me that Mr. Ong was not keeping a proper lookout immediately prior to the accident. His own evidence is that he was not looking forward. While it is perfectly permissible and prudent for a driver who is changing lanes to do a shoulder check I think it is also incumbent on such a driver to take the steps necessary to ensure that it is safe for him to do so.

[58] I have also concluded that Mr. Ong was probably concentrating on the manoeuvre of changing lanes and on the parked car in front of him to the exclusion of keeping a proper lookout. I therefore find that Mr. Ong

[59] Where a plaintiff pedestrian and defendant driver both fail to meet the requisite standard of care and an accident ensues, the court may apportion liability between them…

With regard to assessing the degree to which each party was at fault for the accident, Mr. Justice Sewell said the following:

[60] In this case I conclude that the accident would not have occurred but for the negligence of both Ms. Lai and Mr. Ong. I find that Ms. Lai’s want of care in crossing Prior Street at a dangerous location in the light and weather conditions present was a causative factor in the accident. I need hardly add that she failed to keep a proper lookout. Her own evidence is that she did not see a car that had its headlights on and was clearly visible. Whether this was the case or she did see it and misjudged whether she could pass safely in front of it, her want of care clearly was a cause of the accident.

[61] However, I also find that the accident would have been avoided had Mr Ong been keeping a proper lookout and that the accident would not have occurred but for his negligence in failing to do so.

[63] In this case I have no hesitation in concluding that Ms. Lai’s actions were more blameworthy then those of Mr. Ong. She and her husband placed themselves in an extremely dangerous position in which their safety was entirely dependent on drivers seeing them and takings steps to avoid striking them. They did not have the right of way. The tragic events that occurred that evening could have been entirely avoided had they taken the simple precaution of crossing at the controlled pedestrian crosswalk at Gore, less than a block away.

[64] In all of the circumstances I find that Ms. Lai is 75% liable for the accident that occurred and Mr. Ong 25%. Ms. Lai is therefore entitled to recover 25% of the damages she suffered as a result of this tragic accident.

Damages Award in Jaywalking Injury Case

As a result of the accident Ms. Lai suffered multiple fractures, including to her pelvis, cervical spine and left leg. She also suffered a brain injury. The result of the injuries for Mrs. Lai were profound. On this point the court found as follows:

 

[77] … the accident has had a profound effect on Ms. Lai’s quality of life, physical abilities and independence. Prior to the motor vehicle accident she was an independent, active senior with an active social life. She now has great difficulty climbing stairs without assistance, and requires a cane or walker to assist her in walking. Her difficulties in stair climbing are so great that for all practical purposes I conclude she cannot manage stairs.

 

[78] She is hampered in performing the tasks of everyday living. She has lost a large measure of the independence she formerly enjoyed.

 

[79] In addition, the medical evidence, and in particular the report of Dr. Guy persuades me that the injuries she has suffered will cause permanent disability with no reasonable prospect of significant improvement in her present condition. In summary as a result of this tragic accident, Ms. Lai’s quality of life and ability to live independently have been severely compromised.

For those reasons, the court awarded Ms. Lai $200,000 in damages for pain and suffering. This award made up the bulk of the total award of $307,867. However, due to the liability finding, the plaintiff’s award was reduced by 75% to $77,967.00.

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