In this unusual Vancouver car accident case(Stevanovic v. Petrovic, 2011 BCSC 2) the injury claimant was waiting on the side of the road as his friend approached to pick him up.  The claimant saw his friend and his friend saw him but his friend was showing off and struck the claimant with the right front of his car.  The claimant was thrown up on the hood of the car and was seriously injured, the most serious physical injury being to his to his right knee, which required four surgeries.  The friend denied he was at fault and said that the claimant  acted in complete disregard for his own safety, was standing on the street and, instead of watching the vehicle, chose to turn away and speak with his other friend.  The driver says that had the claimant not moved, he would have avoided the accident. 
The claimant on the other hand argued that the driver, who saw the claimant standing in the roadway waiting to be picked up, is at fault  because the accident could have been avoided if he had use just a little but of care and attention. The injury claimant says that the driver was  showing off in his 1998 BMW 540i.and, while not intending to hit the claimant, wanted to drive as close to the him as possible without hitting him.  The injury claimant’s lawyer argued that the driver made a dreadful miscalculation, and either misjudged his manoeuvre or startled the claimant, who panicked and walked into, rather than away from, the car.
As the judge articulated, “The plaintiff [claimant]says that the defendant must drive in accordance with his obligation under the Motor Vehicle Act, R.S.B.C. 1996, c. 318.  In these circumstances, that means he must not drive without due care and attention or without reasonable consideration for others using the highway (s. 144(1)), he must obey the designated speed (s. 146(3)), and, in passing a playground between dawn and dusk, he must not exceed 30 kph (s. 147(2)).  While acknowledging the obligations of a pedestrian (s. 179 and s. 180), the personal injury lawyer for the claimant argued that there is nevertheless a duty on a driver to use due care to avoid a collision with a pedestrian on a highway.”
In finding the driver 100% at fault the judge stated,

“[54]         I find, on a consideration of all of the evidence, that the defendant intended to drive close to the plaintiff  and to pass by him to the south, however the defendant made the manoeuvre either so close to the plaintiff or at such a speed that the plaintiff moved to avoid the collision.  Rather than avoiding the accident, the plaintiff likely moved into the path of the defendant’s vehicle.

[55]         There is no doubt that the defendant was negligent and caused the accident.  I find on the evidence that had the plaintiff not moved immediately before the accident, the defendant still would have had to steer his vehicle sharply to the left to avoid the collision.  In other words, the defendant could not have avoided the collision by simply applying his brakes immediately before the plaintiff moved.  The defendant was planning to swing to his left at the last second and drive around the plaintiff.  The accident was the result a very risky and dangerous approach by the defendant.

[56]         I find that the defendant was “horsing around” or “showing off” for his friends by this manoeuvre.  While the evidence of Ms. Buric did not accord with the evidence of both the plaintiff and the defendant, in that she testified to seeing the defendant speeding and doing sweeping manoeuvres before the accident, her evidence is consistent with my finding that the defendant was “clowning around”.  The plaintiff testified that the defendant had been speeding, but that he then appeared to slow down and flash his headlights as he approached. “

The court also referred to Cook v. Teh (1990), 45 B.C.L.R. (2d) 194 at 203, wherein the Court of Appeal considered the Motor Vehicle Act  where a pedestrian was struck at a crosswalk:

“Firstly, s. 181(1) and (2) [now essentially ss. 179(1) and (2)] do not constitute an exclusive code relating to rights-of-way between pedestrians and vehicles.  They are not a substitute for the common law duty of care owed by pedestrian and drivers to exercise due care for their own safety and the safety of others.”

The injury claimant was therefore awarded the following:
Pain and suffering     $155,000.00
Loss of Income           $125,000.00
Diminished Capacity $600,000.00
Cost of Future Care   $275,000.00
In-trust                          $15,000.00
Out-of-Pocket             $26,000.00
Total                              $1,196,000.00
Posted by Mr. Renn A. Holness
Issue: Should pedestrians that wait in the middle of the road be found partly at fault if hit by a car?

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