Parmar v. Rink 2019 BCSC 1626 is a pedestrian crosswalk case.

In this case, the motor vehicle accident occurred in a marked crosswalk in a rural area. The injured claimant, who was wearing dark clothing, was walking with her two children.  It was the early evening and it was dark out.  The roads were wet as it was raining “hard” causing decreased visibility.  The driver was familiar with the intersection and roadway and knew that there was a single streetlight at the corner of the intersection. The injured claimant’s daughter, who was walking in front of her and who was not hit by the other driver, was the only witness at trial aside from herself and the other driver.  Her daughter testified that she saw the other driver far away from the marked crosswalk and that he was not using his high beams. Accident reconstruction experts also testified about the intersection for both parties.

The trial judge determined that the driver was predominantly at fault.  He was found to be 75% at fault because he failed to keep a proper look out and yield the right of way to the injured claimant.  The trial judge reiterated that there is a very high standard of care on a driver approaching a marked crosswalk. It was noted that although visibility may have been more difficult due to the weather conditions, there were a number of factors indicating that the driver ought to have seen the injured claimant and her daughters.  These factors included:  a well lit intersection, a marked sidewalk and a marked crosswalk with warning signs.

The trial judge also considered whether the injured claimant was partially at fault and contributorily negligent for the accident.  When there is a finding of contributory negligence, the court will apportion fault between the parties based on “the degree to which each person is at fault”.  Fault refers to blameworthiness.  To determine blameworthiness, the court considers:

  1.  the risks the two parties’ respective conduct created,
  2. the effect and potential effect of that risk, and
  3. the extent to which each party departed from the standard of care

Based on the evidence at trial, the trial judge found the injured claimant 25% contributorily negligent because she saw the vehicle but failed to discern how fast it was driving and how near it was approaching.  On this basis, she was found partially at fault because she proceeded to cross the street without making a reasoned assessment before doing so.  In particular, the trial judge noted the following in the judgement:

[16] Once a pedestrian has safely entered a crosswalk, absent any negligence on the pedestrian’s part that could mislead a motorist into thinking he or she could proceed safely, the pedestrian may assume that motorists will yield the right of way to them and will share no responsibility if struck in the crosswalk (Miksch v. Hambleton, [1990] B.C.J. No. 1810 (S.C.)).

[17] Negligence on the part of a pedestrian in a crosswalk must be proven by the defendant on the balance of probabilities. In Feng v. Graham (1988), 1988 CanLII 3044 (BC CA), 25 B.C.L.R. (2d) 116 (C.A.), Wallace J.A. stated at page 120:

In my view the plaintiff in the circumstances of this case was entitled to assume that the defendant was going to obey the law and yield the right-of-way to her. Her right to rely on that assumption continued until such time as she knew, or ought to have known, that the defendant was not going to grant her the right-of-way, whereupon the plaintiff’s obligation to avoid injury to herself superseded her right to exercise her right-of-way. The onus is on the defendants to establish that the plaintiff knew or ought to have known, that the defendant driver was not going to grant her the right-of-way, and that, at that point of time, the plaintiff could reasonably have avoided the accident.

[18] Pedestrians in crosswalks are not required to exercise “extreme vigilance” to ensure they won’t be struck (Jung v. Krimmer (1990), 1991 CanLII 5706 (BC CA), 47 B.C.L.R. (2d) 145 (C.A.), leave to appeal ref’d 135 N.R. 201n (S.C.C.)). To prove contributory negligence on the part of a pedestrian, the defendant must show more than inattention. A defendant must also establish (1) at what distance the pedestrian should have realized from the speed of the approaching vehicle it was not going to yield; (2) it would it have been possible for a pedestrian to avoid being impacted; and (3) that a reasonable person in the circumstances of the plaintiff should have taken evasive action to avoid the impact: Foreman v. Mortz, 2001 BCSC 95; Dionne v. Romanick, 2007 BCSC 436; Farand v. Siedel, 2013 BCSC 323; Paskall v. Scheithauer, 2014 BCCA 26.

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