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Surrey ICBC Personal Injury

Special Duty Owed When Children Are On The Road Way

You need a top Surrey ICBC Personal Injury Lawyer on your side when things go terribly wrong for you or one of your children. An experienced Surrey ICBC Personal Injury Lawyer can reassure you things will be alright, get you or your family member proper medical treatment and create a legal strategy to ensure you maximize the financial award you will need to be made whole.

Our senior MacLean Law Personal Injury department has handled hundreds of Surrey ICBC personal Injury cases and she has the proven ability to quickly get you the best medical treatment while creating a cogent legal strategy to maximize your damages settlement or trial award.

We take the time to explain a recent heartbreaking case where negligence of both the driver and parent of a toddler led to a child being run over by a van. Any Surrey ICBC Personal Injury is serious and requires specialized handling. Hiring a top Surrey ICBC Personal Injury lawyer levels the playing field with ICBC’s trained adjustors.

Walkus v Walkus, was a 2015 decision of Madam Justice Bruce involving the assessment of liability in respect of a motorist who was unaware that a two year old had climbed under his van to retrieve a ball when he drove out of the driveway backing over the toddler and injuring him.

The motorist, who had dropped the child and his care giver off at the residence, lost sight of the child after he exited the vehicle. The caregiver entered the house with groceries and the stroller while the child stayed outside the house playing with a ball. The ball eventually rolled under the vehicle and the toddler crawled under the van to retrieve it. While the toddler was under the van, the motorist left the residence driving over the toddler. He denied liability for the incident, blaming the caregiver for inadequate supervision.

At trial was the issue of liability for the accident.

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Madam Justice Bruce set out the law at paragraph 52 as follows:

The presence of children on or near the roadway gives rise to a duty to take special precautions due to the unpredictability of the actions of children. This test is cited with approval in Williams at para. 8:

o The appellant says the trial judge was in error. He refers to Underhill v. Louis[1987] B.C.J. No. 730, Unreported, 19 December 1986, New Westminster Registry No. C840586 (B.C.S.C.), where the 11-year-old plaintiff failed in her claim against the driver as the driver had taken the necessary reasonable precautions in the circumstances of that case. The trial judge in Underhill v. Louisfollowed a judgment of this court in O’Brien v. Mrakic, Unreported, 13 September 1984, Vancouver Registry No. CA830176 (B.C.C.A.) [reported [1984] 6 W.W.R. 667]. In that case Mr. Justice Macfarlane, speaking for the court, said at p. 4 [p. 669]:

  • As I understand counsel, they do not disagree that the test to be applied is as follows: knowing that the actions of children are unpredictable, a driver has a duty to take reasonable precautions for the safety of a child on or near the highway.

The same test was applied by the B.C. Court of Appeal in Chohan at 319:

o … There is, of course, a need for constant vigilance for children on the roads, especially in suburban areas, for the very reason that they cannot be expected always to act with the same care that is expected of adults.

o Once observed in a dangerous situation, children must be given special attention, so that any precautionary or evasive action indicated will be taken in time.

Hood J. applied this formulation of the test in Bourne at para. 55:

o In my opinion, once the presence of a child or children on a road is known, or should have been known, to the driver of a vehicle proceeding through a residential area where children live, that driver must take special precautions for the safety of the child or children seen, and any other child or children yet unseen whose possible appearance or entrance onto the road is reasonably foreseeable. The precautions include keeping a sharp look out, perhaps sounding the horn, but more importantly, immediately reducing the speed of the vehicle so as to be able to take evasive actions if required.

In rendering her decision Madam Justice Bruce indicated the following:

In these circumstances, it was incumbent on Terry Walkus to determine where the child was before he drove away from the house. Children playing with a ball in close proximity to a motor vehicle create a hazard that Terry Walkus knew or ought to have known created a risk of harm. Had he kept a sharp lookout for the claimant while the groceries were being unloaded, this would have satisfied the standard of care. However, having paid little attention to the child or the comings and goings of the adults, and consequently having no knowledge of where the child was, Terry Walkus had a duty to take additional steps to locate the child to ensure his safety. He could have honked the horn to get Mr. Paul’s attention and questioned him about the claimant’s whereabouts. He could have asked Eva Walkus if she had seen the claimant. He could have exited the vehicle and inspected the perimeter of the van to ensure the child was not in a dangerous position.

With respect to the responsibility of the caregiver Madam Justice Bruce indicated the following:

Ms. Nelson was the claimant’s caregiver on the day of the accident and she ought to have been aware that permitting him to play with a ball unsupervised in the vicinity of a parked vehicle created a dangerous situation. She clearly breached the duty of care in the circumstances. On the other hand, Terry Walkus had every reason to be concerned about the claimant’s safety because he knew that the child was not being supervised and had been left in a vulnerable position near his van. His failure to keep a proper lookout for the claimant while the groceries were being unloaded, and his failure to determine the child’s whereabouts before setting his vehicle in motion, were equally contributory to the accident and the resulting harm caused to the claimant.

Accordingly, I find that Ms. Nelson and the defendants are equally liable and apportion liability equally as between the defendants and Ms. Nelson, as a third party.

The moral of the story is that you need to apply common sense with young children both as a parent and as driver. Failure to do so can endanger your most precious asset your child! If you or your child suffer an unfortunate accident call us right away to get the best medical help and proper legal guidance. You need the best Surrey ICBC Personal Injury lawyer possible. We are one of Surrey’s top rated personal injury law firms and our lawyers handle your case personally. They will speak meet with you in person and you won’t be assigned to a non lawyer to handle your case. We don’t believe in an impersonal approach.

Call us today at 604-576-5400 in Surrey or toll free across BC at 1-877-602-9900 to meet with us in Vancouver, Kelowna and Fort St John/Dawson Creek.

 



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