In this no lawyer pedestrian case(Lariviere v. Martins, 2013 BCSC 1751)a vehicle was travelling west on East Hastings Street,around midnight, approaching the intersection of Jackson and East Hastings when the claimant stepped off the sidewalk on the north side of Hastings Street, with the intent of crossing to the south side. She did so in the face of a “wait” signal and was hit by the vehicle when she was in or very nearly in the marked crosswalk.
The claimant did not have a personal injury lawyer to represent her. While she did have a lawyer earlier in the litigation process, that relationship apparently ended and she appeared for trial without having anyone to act for her. While best efforts were made to accommodate the injury claimant, there were deficiencies in the formulation and presentation of her personal injury case. It appears that had it not been for the professionalism of the lawyer for the driver the claimant may well have had her claim completely dismissed.
However the judge found the driver 25% at fault for failing to keep a proper lookout.
“Had she done so, I expect she would have seen the plaintiff set out from the sidewalk to cross the street. It was reasonable for her to have expected that there might be pedestrian traffic in that area at that time, and, given the nature of that particular community, it was not beyond the realm of reasonable possibility that those who were about at that time might be expected to move around other than in strict compliance with the rules of the road and the traffic control devices that were present. Accordingly, her negligence was a contributing cause of the event.”(emphasis mine)
The court is establishing a higher duty on drivers to avoid pedestrians when they are approaching places like Vancouver’s downtown East side. In addition to the statutory duties there is as well a common law duty which is relevant to the analysis: users of the highway, whether they are drivers or pedestrians, are required to exercise due care with respect to all other users.
The claimant was found to be 75% at fault for stepping out to cross the street, against the light, and without proper regard for the cars approaching from the east. Her conduct in doing so was undoubtedly a cause of the accident and her personal injuries.
The principal personal injury claim was a fracture to her right leg and the possible need for a further operation to deal with ongoing complication of the surgery. The evidence was not presented well as the claimant did not have a lawyer. Other claims for dental injuries were denied and no out of pocket expenses were presented or awarded. the injury claimant was awarded 25% of the following:
$65,000– Pain, suffering and loss of enjoyment of life:
$ 8,000 Cost of future care: