This claimant was injured in a pedestrian-vehicle collision at an unmarked crosswalk at the intersection of Harwood Street and Thurlow Street in Vancouver. The injury claimant sustained significant injuries, profoundly impacting her quality of life. Liability and damages are both in issue, with ICBC proposing a 65-35 fault apportionment favoring the claimant, while the claimant argues for the defendant’s full liability (Nolan v. Kohl,2024 BCSC 1202).

The claimant testified that she was crossing Thurlow Street when a blue car stopped to allow her to cross. As she crossed, she was struck by another car. She described being hit at her right hip, which resulted in her landing on the ground and sustaining multiple injuries. she had checked for traffic before crossing and had not seen the defendant’s car approaching in the second lane. The collision occurred in daylight, with possibly light rain. The defendant testified that he did not notice any car in his lane as he approached the intersection. He claimed to have seen the claimant only after she stepped out from behind the stopped blue car, at which point he braked but could not avoid hitting her.

Statutory Provisions and Right of Way

The court identified that an unmarked crosswalk qualifies as a crosswalk under the Motor Vehicle Act (MVA). Section 179 of the MVA stipulates that drivers must yield to pedestrians in a crosswalk and must not overtake vehicles stopped to let pedestrians cross.

Common Law Duty of Care

Both drivers and pedestrians have a general duty to exercise due care for their own safety and that of others. This duty extends beyond statutory requirements.

Determining Fault

The primary issue was whether the driver was in the right lane (as he claimed) or had pulled into it to overtake the stopped blue car (as suggested by the claimant). The court concluded that the driver breached his statutory duties under section 179(1) and 179(3) of the MVA by failing to yield the right of way and attempting to overtake the stopped vehicle.

In relation to the point about the claimant wearing a hood, she testified that the hood came to the side of her face.  There was no evidence that the hood interfered with her ability to see anything.

Pedestrian’s Exercise of Due Care

The court found that the pedestrian had exercised due care by looking for oncoming traffic before entering the crosswalk and checking the second lane before proceeding past the stopped blue car. Her actions fulfilled her duty of care.

Contributory Negligence

The defendant argued that the claimant was partly negligent by not taking sufficient care when stepping into the second lane. The court rejected this argument, emphasizing that the pedestrian had the right of way and took reasonable precautions. The defendant’s comparison to other cases involving pedestrian contributory negligence was deemed inapplicable due to differing circumstances.

The court held the defendant driver  wholly liable for the collision. The pedestrian was found to have exercised reasonable care and was entitled to expect other drivers to obey traffic laws. The court dismissed the defendant’s claim of contributory negligence on the part of the claimant, thus attributing full liability to the driver.

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