In 2018, 117 pedestrians were fatally injured on Ontario’s roads.
Sitting among seven other industrialized nations where the number of pedestrian deaths is on the increase, this problem is clearly a national one. And while distracted and negligent driving is definitely a contributing factor, the myth that pedestrians always have the right of way adds to the problem.
The Highway Traffic Act defines the rules around pedestrians a little differently than other motor vehicle crashes. While those rules seem to favor pedestrians, the reality is that the courts have been flexible in their interpretation of liability.
What Is a Pedestrian MVA?
A pedestrian motor vehicle accident is a type of accident wherein a motor vehicle strikes a person who is not in a vehicle. Usually, pedestrian accidents involve a car or truck and a person travelling on foot. However, the definition of pedestrian also includes people who are adjusting motor vehicles on the side of the road or people using bicycles.
What Does the HTA Say About Pedestrian MVA’s?
In a regular motor vehicle accident, the burden of proof falls on the injured person and their lawyer. Meaning, the injured party must prove that the other driver was negligent, and this negligence resulted in the accident and the subsequent damages.
Pedestrian motor vehicle accidents that occur on public roadways don’t fall under this general rule. Instead, the Highway Traffic Act (HTA) creates something called a “reverse onus” in cases of pedestrian accidents. The reverse onus places the burden of proof on the driver of the vehicle.
More specifically, Section 193(1) of the HTA states that: “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.”
In other words, the driver involved in a pedestrian accident is presumed to be negligent and is obligated to prove otherwise.
In theory, this means that the driver is always at fault. The onus falls on the driver and their lawyer to demonstrate how they acted reasonably considering the circumstances of the accident. Whereas the pedestrian or cyclist only has to prove that the accident occurred and that it was the accident that caused the damaged.
Public Roads vs Private Property and Roadways
When it comes to private property and roadways, parking lots, driveways, and unassumed roads, the reverse onus condition doesn’t apply. The burden of proof is similar to other motor vehicle accidents in pedestrian accidents that occur off of public roadways. That is, the pedestrian or cyclist must prove that the driver is liable for the accident and their damages or injuries.
Pedestrians often believe that they have the right of way on roadways. While it is true that drivers have to stop and remain stopped when they encounter a pedestrian crossing on a public roadway, this doesn’t give carte blanche to pedestrians when engaging upon a roadway whether on foot, bike, or otherwise outside of a vehicle.
And, although the phrasing of the reverse onus makes it more difficult for a defendant to disprove their liability in a pedestrian accident case, it doesn’t guarantee that they will be considered fully liable. The courts have made it clear that the plaintiff can also be held responsible in pedestrian motor vehicle accidents.
If a driver can demonstrate that they acted reasonably in the context of the accident, they may be able to establish that the pedestrian was also liable. Doing so requires the driver to prove that pedestrian didn’t act with due care for their own safety or the safety of others on the roadway.
This interpretation of liability in pedestrian accidents is based on the notion that duty of care does not fall solely on drivers. It can be divided between the pedestrian and the driver should the driver establish that the pedestrian was negligent in their actions.
In determining liability in these cases, the courts consider three important questions:
- Did the pedestrian act reasonably and rationally?
- Did the pedestrian and driver maintain a proper look out?
- Was the pedestrian crossing at a crosswalk?
Importantly, there is a higher duty of care owed to pedestrians who cross at regular street crossings and crosswalks. More rights are afforded to pedestrians who are involved in accidents when crossing at a marked crossway.
When crossing a roadway somewhere other than a crosswalk, pedestrians do indeed have the right of way. But liability may still be shared if the driver can show that they did not have a reasonable way to see the pedestrian and/or time to avoid the accident.
Involved In A Pedestrian Accident as a Driver or a Pedestrian?
The reverse onus condition of the HTA is different from other traffic laws in that it automatically assumes that liability falls on the driver. Pedestrians only need to show that the accident occurred, whereas the driver must demonstrate that they were not the only negligent party in the accident. However, numerous court decisions have shown that liability can be shared in cases where the pedestrian did not act with due care for their safety and the safety of others using the roadway.
Like most legal matters, the law regarding pedestrian motor vehicle accidents is not black and white. If you’ve been involved in an accident, either as the pedestrian or the driver, you need help navigating the grey area.
At Sharma Law, we have ample experience fighting on both sides of these cases. Contact us today for a consultation.