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Pedestrian in Crosswalk found 20% at Fault for her Brian Injury


In this crosswalk personal injury occurring in Port Coquitlam (Paskall v. Scheithauer,2014 BCCA 26) the jury found a pedestrian twenty percent fault for her fractured her skull and traumatic brain injury after attempting to cross at a  marked crosswalk. The verdict was upheld by the BC Court of Appeal despite the appellants plea that she was lawfully within a crosswalk.
The facts were however that two eyewitnesses gave evidence that the claimant paused only a second or two before leaving the sidewalk, she did not look west before doing so, put her arms in the air “kind of violently” toward eastbound traffic, crossed the street quickly and did not look right or left.  One witness said that the claimant did not stop before leaving the sidewalk and did not look either east or west.  The claimant had pre-existing cerebral palsy which  affected her lower limbs, resulting in a distinctive walking gait.
In commenting about contributory negligence at paragraph 76 Judge Chiasson pointed out,

 Contributory negligence reflects the fact that parties ought not to create a foreseeable risk of harm to themselves.  It is not an obligation that is owed to others.  It is an obligation individuals owe to themselves.

 This case makes it clear that the current law in BC does not afford any special treatment to pedestrians despite their relative vulnerability as compared to motor vehicles:

[75]  I do not read the authorities as supporting the proposition that once pedestrians are lawfully in a crosswalk they have a special immunity from the obligation to attend to their own safety.  Comments that heroic action or extreme measures are not required merely reflect the circumstances of the cases in which they were made.  In my view, a person – driver or pedestrian – who has the right-of-way is entitled to assume that others will act lawfully and will respect it.  That does not mean that they can ignore the risk that others may not do so and place themselves in danger.

This is a rather confusing  affirmation of the proposition that the appellant had a common-law duty to avoid a foreseeable risk of harm to herself. I would not be surprised however if the Supreme Court of Canada gives leave to have this one heard, if it is so appealed.
For more information about how the courts change decisions  in personal injury cases watch our short video , how personal injury cases can be reduced.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A., LL.B.

Tags: At Fault, Brain Injury, contributory negligence, Joint and Several Liability, liability

2 responses to Pedestrian in Crosswalk found 20% at Fault for her Brian Injury

  • Drunk Gyrating Passenger Hits Steering Wheel Causing Crash | Holness Law Group

    October 17, 2014 5:13am

    [...] as the majority of it came from her own drink container.  The judge assessed the claimant’s contributory negligence to be [...]

  • pedestrian accident

    March 10, 2014 12:24am

    If the plaintiff didn't obey the rules while crossing the roads then plaintiff is not considerable for the compensation.

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"Renn A. Holness is a gifted lawyer and author to over 1000 legal blog articles. Married father of two daughters, son of a neurosurgeon and founder of Holness Law Group."

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