By James D. Cuming

A review of recent Alberta case law concerning pedestrian-motor vehicle collisions confirms that while these decisions are predominantly fact driven, questions of liability are typically determined employing a fairly well established method of analysis. This article identifies and summarizes the key components of the judicial analysis of most pedestrian-motor vehicle cases in Alberta.Users of Alberta’s streets and highways are entitled to proceed on the assumption that other users of those streets and highways – including pedestrians – will observe traffic rules and regulations. Yet, as the authorities point out, rights are not absolute as between pedestrians and drivers. Each has a responsibility, grounded both in legislation and the common law, to observe due care both for their own safety and the safety of others. Where a pedestrian does not, they will generally be found to be at least partly responsible for any collision or injuries that result. (Segal, Manual of Motor Vehicle Law, 3rd Edit., (Toronto: Carswell, 1982-), at pp. 10-54.5, 10-136, para. 144(d), 179(c); Mose v. Moeck, [2005] A.J. No. 830, at para. 24)The correct approach to a determination of liability in a pedestrian-motor vehicle case, therefore, turns on the court’s interpretation and application of relevant legislative provisions, its assessment of the reasonableness of a litigant’s conduct in light of the common law duties of care to which she is subject, and its analysis of the specific circumstances giving rise to the accident in light of these statutory and common law requirements. (Rances v. Scaplen, [2008] A.J. No. 1323, at para. 228)While each pedestrian-motor vehicle accident occurs in a specific way and thus can trigger the operation of one or more legislative provisions, the one most often invoked in such litigation is section 186 of Alberta’s Traffic Safety Act, R.S.A. 2000, c. T-6.Section 186 (formerly section 180 of the Highway Traffic Act, R.S.A. 2000, c. H-8) mandates that the defendant driver prove lack of negligence for the accident on a balance of probabilities. This is a burden of disproof that applies until the end of the case and is not discharged by proof that the plaintiff pedestrian was negligent. (Bouchard Estate v. Chalifoux, [2004] A.J. No. 1453, at para. 50)The nature of this reverse onus provision was summarized by Justice Adam Germaine in Meyer (Next Friend of) v. Neuman, [2004] A.J. No. 347, at para. 97-101:

“[The provision] creates a presumption which may be rebutted by the defendant. It is the defendant’s conduct that is under scrutiny. However, the presumption may be rebutted if a consideration of all the evidence demonstrates that the plaintiff, by his conduct, contributed in a material way to the accident, and the defendant could not have avoided it by exercise of reasonable care. The defendant does not have to prove himself to be blameless on a civil standard, only that he did not entirely cause the loss or damage. The assessment is to be based on the entire evidence, not by an examination of the evidence piecemeal, nor by assessing the plaintiff’s conduct first.”

So, how does a litigant establish that she observed due care both for her own safety and the safety of others and thus was not negligent (as a driver) or contributorily negligent (as a pedestrian)? The relatively limited number of recent decisions considering liability in a pedestrian-motor vehicle accident suggest that the following factors will be critical to the judicial analysis undertaken:

  • Whether the driver was keeping a proper lookout in all the circumstances and whether the pedestrian met her obligation to look out for traffic and not to cross in the face of oncoming traffic (particularly if she was not in a crosswalk, at a corner or intersection or was crossing in an area where there were non-operational traffic signs). (H.C. v. Loo, [2006] A.J. No. 403, at para. 8; Barnes v. Smith, [2002] A.J. No. 110; aff’d, [2003] A.J. No. 452)
  • Whether driver or pedestrian properly yielded the right of way and whether each met the duty to anticipate a reasonably apparent risk and take appropriate precautions. (Bouchard Estate v. Chalifoux, supra, at para. 50-52)
  • Whether or not the pedestrian was in plain view of operators of motor vehicles proceeding on the roadway (ie. Was the pedestrian in a crosswalk, intersection, sidewalk, etc.? Was the pedestrian wearing dark or light colored clothing? Was the field of vision of either driver or pedestrian obstructed?) (Cooper v. Crockford, [2007] A.J. No. 986, at para. 38-55)
  • Whether there were climatic or other conditions (ie. lighting, road design, vehicle defects, etc.) that might have impaired visibility or otherwise contributed to the collision.
  • The time of day at which the accident occurred, the location of the collision, the speeds involved, and what, if any, traffic control devices were operating at the scene of the collision. (Bouchard Estate v. Chalifoux, supra, at para. 13)
  • Whether alcohol, drugs or other type of impairment might have operated to deprive either driver or pedestrian of the ability to avoid the collision. (Cooper v. Crockford, supra, at para. 37, 41, 50)

In conclusion, the status of the law regarding pedestrian-motor vehicle collisions in Alberta remains in a constant state of evolution. As the above factors are taken into account, counsel and courts will work to continue to refine the law in this area.ENDJames Cuming is the senior partner at Cuming & Gillespie LLP. His practice consists of personal injury, class actions, and securities claims for Plaintiffs. James is also the current president of the Alberta Civil Trial Lawyers Association, and a Governor of the American Association for Justice.