Causes and Liability in Pedestrian Accidents

Many Kitchener and Waterloo residents well remember the tragic 2012 pedestrian accident involving a 13-year-old girl, Lydia Herrle, who was struck by a recycling truck just after disembarking from a school bus on Erb’s Road, west of Waterloo.  As a result of the collision, Ms. Herrle was thrown 25 meters and suffered multiple injuries, including a traumatic brain injury and internal bleeding from several broken ribs.  The traumatic brain injury caused permanent physical and cognitive impairments which have a life-changing impact on the young girl’s life. The at fault driver was charged with careless driving and felt extreme remorse for his actions, and admitted that he couldn’t stop in time after he reached for a cigarette and lighter and was momentarily distracted just before the accident.

Pedestrian accidents and fatalities have been on the rise in many urban centres in Ontario, despite municipal programs such as the Vision Zero plan in Toronto, which includes implementing infrastructure such as designated pavement marking for pedestrians and pedestrian safety corridors.  And, while Waterloo Region doesn’t have anywhere near the number of cars and pedestrians as Toronto, serious pedestrian accidents occur all too frequently in Kitchener, Waterloo and Cambridge.  One such accident happened on March 7^th near Lorraine Dr. and Greenbrier Road in Cambridge, and resulted in life-threatening injuries for a pedestrian who was struck by a car.

In 2010, the Office of the Chief Coroner released the results of a comprehensive study of pedestrian deaths in Ontario. Below are some of the key findings reported in the study.

• 33% of pedestrian deaths were caused by a driver who committed a traffic violation prior to the accident
• In 33% of pedestrian deaths, the pedestrian’s actions contributed to, or caused the accident
• 60% of pedestrian fatalities happened at night or during reduced visibility
• 55 % of pedestrian deaths occurred away from an intersection or driveway
• 32.3 % occurred at an intersection
• 11.5 % occurred where vehicles where exiting or turning into a driveway

The Study found the following leading causal factors in pedestrian accidents.

• Higher vehicle speeds and higher posted speed limits increased the incidence of pedestrian deaths
• Driver failing to yield to pedestrians was a factor in about 21% of deaths, including when vehicles turn left or right and at crosswalks
• Driver inattention caused 14% of deaths, including where drivers hit pedestrians on a sidewalk or road shoulder
• Possible pedestrian distractions, such a mobile device, were identified in 20% of deaths
• Mid-block crossing correlated highly with deaths: 31% were hit at an uncontrolled crossing
• Crossing against the traffic signal was a factor in 12% of deaths
• Alcohol or drug use was identified in 7% of drivers and 28% of pedestrians involved in fatal pedestrian accidents

Deciding whether a Driver is responsible in a Pedestrian Accident

When a pedestrian is struck by a car, the burden is on the vehicle driver to disprove that their actions were negligent and contributed to, or caused, the accident.  With regards to pedestrian accidents and cycling accidents, the Highway Traffic Act s. 193(1) states,

When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle. 

When pedestrian accidents occur, officers at the scene typically assess the circumstances of the accident and if there is evidence to suggest that the driver’s failure to take due care caused the collision, the officer will issue a ticket for a traffic violation, such as ‘failing to yield to a pedestrian crossing the street’ or a criminal violation, such as dangerous driving.  And, if the driver does not have their traffic ticket or criminal charge dismissed, the Courts in a civil action generally take conviction of the driving offence as proof that the driver was negligent in causing the pedestrian accident.  This is what occurred in a recent civil action, Rolley v. MacDonell (2018), where the defendant driver was found wholly liable for the pedestrian’s injuries after the driver was ticketed for failing to yield and she paid her ticket without overturning the charge.  

Ontario’s Highway Traffic Act also includes several regulations, such as the following, that govern specific circumstances aimed at keeping pedestrians safe. If a driver violates these regulations and hits a pedestrian, they are highly likely to be found liable for the pedestrian’s injuries.

• At pedestrian crossovers, drivers approaching when a pedestrian is crossing within the crossover must: a) stop before entering the crossover, b) cannot overtake any vehicle stopped at the crossover, and c) cannot proceed until the pedestrian has fully crossed the street.
• At any location where there is a school crossing guard displaying a school crossing stop sign, drivers and cyclists must stop and yield to pedestrians until they have fully crossed the street.

Many pedestrian accidents occur because the vehicle driver did not properly monitor for pedestrians or was distracted or negligent in some way.   And, when this occurs, the outcome is generally very serious for pedestrians who are extremely vulnerable to serious and permanent injuries when struck by a car or truck.  This vulnerability, along with the Ontario government’s concerns about promoting pedestrian safety, are the reason that drivers have a higher duty of care with respect to pedestrians and other vulnerable road users.

If you were injured in a pedestrian accident, speak to a Dietrich Law personal injury lawyer to find out about your legal rights in the matter and whether you have a strong case for compensation.