Personal injury cases can arise out of a myriad of situations, however, one type of claim that can be particularly prevalent during the spring and summer months involves injuries suffered by pedestrians at the hands of drivers or cyclists. From a practical perspective, pedestrians are generally vulnerable on the roads, lacking the protection afforded by a vehicle (or even a bike), even when they are walking in marked crosswalks or are adhering to the appropriate light signals. As a result, many of Ontario’s laws are designed to promote pedestrian safety, such as speed limits, crosswalks, and other measures.

When it comes to personal injury claims, however, pedestrians are not automatically without fault if they are involved in an accident. Indeed, many personal injury claims—while unfortunate—can arise in situations where pedestrians are not following the rules of the road or taking steps to protect their safety.

So, when will a pedestrian be found at fault in a personal injury claim? This blog will provide an overview of pedestrian liability and will offer some helpful tips for staying safe on Ontario’s roads.

Who is a “Pedestrian”?

A pedestrian will generally be identified as a road user and is not a bicycle or motor vehicle user. While pedestrians are typically walking on foot, individuals utilizing a wheelchair or other motorized mobility device could also qualify as a pedestrian under Ontario’s Highway Traffic Act.

Pedestrians and the Rules of the Road

Many Ontarians are likely familiar with the “rules of the road” and what is expected of both drivers and pedestrians. For example, it is common knowledge that Ontario drivers must always yield to pedestrians in crosswalks, intersections, and pedestrian crossovers and stay stopped until the pedestrian is fully off the roadway (even if the pedestrian has crossed halfway across the road and is out of the driver’s lane).

Likewise, pedestrians are expected to cross the road only at crosswalks, intersections, and pedestrian crossovers. If a pedestrian is walking alongside a street with no sidewalk, they are expected to walk along the left shoulder of the road to ensure they are facing oncoming traffic.

While the general rules of the road are critical for ensuring the safety of Ontario’s drivers and pedestrians, following them does not necessarily mean that a driver who injures a pedestrian will be found completely at fault for the pedestrian’s resulting injuries. This is where the concept of contributory negligence comes into play, which we will explore further below.

A Primer on Negligence

Personal injury law is rooted in the concept of negligence. When another party creates a risk of harm that results in damage or injury to an accident victim, the victim is entitled to compensation for the resulting damage or injury.

Where an accident victim can show that the negligent party owed them a duty of care, breached their standard of care, and caused damages to the injured party, they’ll be entitled to compensation, such as compensatory damages (for example, medical expenses or income loss) and non-pecuniary damages (for example, pain and suffering, emotional distress, and loss of enjoyment).

However, the injured party’s compensation will be limited by the extent to which the defendant can prove that the injured party was partly or wholly liable for their damage or injury—referred to as “contributory negligence.”

Personal Injury and Contributory Negligence

Contributory negligence is a defense that a defendant can bring against the injured party’s claim. In essence, the defendant will attempt to prove that the victim’s negligence contributed to their damage or injury (in whole or in part). Prior case law can help provide guidance on determining how much the injured party’s contributory negligence will impact their claim.

Examples of Contributory Negligence in Pedestrian Accidents

As every personal injury case is decided on its own unique facts, it is difficult to provide concise guidance on the circumstances in which a pedestrian will be found contributorily negligent for a personal injury claim. However, prior case law provides some illustrative examples of circumstances where pedestrians were found contributorily negligent for their injuries. Some examples are provided below:

• Ignoring Traffic Signals: If a pedestrian crosses the road while jaywalking or while a traffic signal indicates that it is not safe to do so (for example, when a “Do Not Walk” signal is on) and is injured by a motor vehicle, they may be found contributorily negligent for their resulting injuries.
• Distracted Walking: If a pedestrian is distracted while crossing the street (for example, while listening to headphones or using their phone) and fails to notice oncoming traffic, they may be found contributorily negligent for their resulting injuries.
• Unexpected Actions: If a pedestrian does something unexpected, such as darting into traffic or stepping out from behind a parked car, and is subsequently struck by a vehicle, they may be found contributorily negligent for their resulting injuries.
• Intoxication: If a pedestrian is impaired and takes an unexpected action relating to that impairment (for example, stumbling into the road), they may be found contributorily negligent for their resulting injuries.
• Visibility: Time of day and weather conditions can also play a key role in determining contributory negligence. For example, if a pedestrian is walking alongside a roadway in low visibility conditions and is not wearing appropriate visibility gear (for example, wearing all black in the middle of the night) and is struck by a vehicle, they may be found contributorily negligent for their resulting injuries.

Pedestrian Safety Tips: Reduce Your Risk

The best way to protect yourself as a pedestrian is to take preventative measures. With that in mind, some important pedestrian safety tips are provided below to help you reduce your risk of injury:

• Follow the Rules of the Road: Cross the street at marked pedestrian crosswalks or crossovers, and cross only when the driver has fully stopped. Holding your hand out and making eye contact with drivers are also prudent steps to take to ensure that you are seen and can confirm that the driver has seen you. Further guidance can be found on the government of Ontario’s “Pedestrian safety” page.
• Stay Visible: If you are walking in inclement weather or low-light conditions, take steps to ensure you are visible to drivers. This might include wearing bright or reflective clothing, such as a safety vest.
• Be Vigilant: As tempting as it can be to stare at your phone screen on a long walk, keep distractions to a minimum, and remain aware of your surroundings, especially when crossing the road.

Contact the Personal Injury Lawyers at Campbell Litigation for Trusted Representation

Campbell Litigation’s skilled personal injury law team have extensive experience representing clients in their personal injury claims to help them secure comprehensive and fair settlements. We will guide you on the right path to ensure that you are positioned to recover the highest settlement possible, so that you can focus on your health and move forward with your life after an accident. Campbell Litigation proudly serves clients in Kitchener, Waterloo, Cambridge, Guelph, Stratford and surrounding areas. If you have been injured due to another party’s negligence, reach out to us at 519-886-1204 or contact us online to arrange a confidential consultation.