If you have been injured in a Vancouver ICBC Pedestrian accident and need the assistance of an experienced lawyer, please call us now in Vancouver at 604-602-9000, or toll free from anywhere in BC at 1-877-602-9900, or just click here to send us an email. Your no obligation initial consultation is FREE, and you don’t pay us anything unless we succeed.
We are here to help.
Vancouver ICBC Pedestrian Accident Lawyers injury cases often involve the question of “whose fault is it?” In general terms this is called liability.
We frequently receive calls from clients injured as a pedestrian in Vancouver, and elsewhere, who are worried because an ICBC or police report says that they were “at fault” or were partly liable for the accident. This does not mean that you cannot get money from ICBC for your injuries!
Our experienced Vancouver Pedestrian and Personal Injury Lawyers know that just because an ICBC police report says that you were careless, are at fault, or stepped into traffic when you shouldn’t have does not mean that this report is necessarily true!
Also, even if a pedestrian is partly at fault, it is crucial that a comparison is made between the driver and the pedestrian. Frequently both parties have been careless or negligent. You do not have to agree with ICBC or the police when it comes to assigning blame or liability as a pedestrian. We can help.
The recent pedestrian car accident injury case of Han v. Chahal is a good example of how liability can be shared between a driver and pedestrian in a Vancouver ICBC Pedestrian case. In this particular case, even though ICBC and the car driver said that the pedestrian was to blame, the Court decided that was not true. Here are some of the details:
B. Liability – Analysis
 Ms. Chahal was unquestionably negligent in striking Ms. Han. Although it was night-time, there was street lighting in the area. I find that Ms. Chahal’s vehicle headlights were on. The plaintiff would have been visible to Ms. Chahal she had exercised due care and attention. The defendants concede liability.
 The defendants do not deny that Ms. Han was lawfully crossing the street in a marked crosswalk and that she had the right of way, pursuant to ss. 127(1)(b) and 132(2) of the Motor Vehicle Act, RSBC 1996, c. 318.
 However the defendants argue that the plaintiff was not sufficiently vigilant for her own safety in crossing the street, and that she ought to have been aware of the approach of the defendant’s vehicle. They argue that, as it was night-time, and she was not wearing reflective clothing, she ought to have taken more care for her own safety before leaving the curb and entering the crosswalk, by perhaps making eye contact with the driver of the approaching vehicle, or hesitating before leaving the curb, until such time as she could have been confident that the driver of the approaching vehicle had seen her.
 The following comments of Wallace, J.A. for the court in Feng v. Graham (1988), 25 B.C.L.R. (2d) 116 (C.A.) are apt:
Counsel for the defendants submitted that on the evidence the respondent was at least contributorily negligent for the accident which caused her injuries. Her alleged negligence consisted of leaving the curb and walking hurriedly into the path of the motor vehicle driven by the defendant when that vehicle was so close that it was impracticable for her to yield the right of way. He asserted that the slightest lookout on the part of the plaintiff would have revealed the presence of the defendant’s vehicle and any hesitation on her part would have allowed the defendant’s vehicle to pass her safely.
In my view the plaintiff in the circumstances of this case was entitled to assume that the defendant was going to obey the law and yield the right-of-way to her. Her right to rely on that assumption continued until such time as she knew, or ought to have known, that the defendant was not going to grant her the right-of-way, whereupon the plaintiff’s obligation to avoid injury to herself superseded her right to exercise her right-of-way. The onus is on the defendants to establish that the plaintiff knew or ought to have known, that the defendant driver was not going to grant her the right-of-way, and that, at that point of time, the plaintiff could reasonably have avoided the accident. See Mercer v. Mercer and Delorme,  2 W.W.R. 294 at 296 (Man. C.A.).
 I find that the plaintiff was struck in the crosswalk, just as she entered the second of the two westbound lanes. She testified that she had proceeded about four steps when she was struck. The independent witness, Mr. Singh, estimated that she was struck after she had crossed one lane. Ms. Chahal’s evidence about the accident details was generally vague. However she was turning left and would presumably have been attempting to enter the left lane of the two westbound lanes, as she was obliged to do pursuant to s. 165 of the Act. Thus, I conclude that the plaintiff was well into the intersection when she was struck, and some seconds had elapsed since she had left the curb. I conclude that at the time she left the curb there was absolutely no reason for the plaintiff to be especially concerned for her safety in relation to the defendant’s vehicle. She was aware of the defendant’s vehicle on the other side of the intersection, but was entitled to assume that the defendant would obey the law and yield the right-of-way to her.
 It is not entirely clear whether the defendant stopped at the light before proceeding into the intersection and striking the plaintiff. The plaintiff’s evidence was that the defendant’s vehicle was moving when she first saw it, but it stopped. The defendant’s evidence is more consistent with her simply proceeding into the intersection on a green light, without stopping. This scenario is also more consistent with the evidence of Mr. Singh, who testified that he was stopped at the red light when the collision occurred, and his evidence that the defendant was going “fast”. This scenario is also supported by the evidence of the plaintiff that she waited at the curb after activating the pedestrian signal, then proceeded into the crosswalk after the walk signal came on, at which time I infer that the light facing Ms. Chahal would definitely be green, and by my conclusion that there was a lapse of time between when Ms. Han left the curb and when she was struck. Finally, had it been necessary for the defendant to stop, there is a greater chance that she would have seen the plaintiff, which of course she did not. I conclude that the defendant entered the intersection on a green light, without stopping, and struck the plaintiff in the crosswalk well after she had left the curb.
 The defendants have not satisfied the onus on them to establish that the plaintiff knew or ought to have known that the defendant driver was not going to grant her the right-of-way, and that, at that point of time, the plaintiff could reasonably have avoided the accident. There is no basis in the evidence to suggest that after the plaintiff was in the crosswalk she ought to have seen the defendant’s vehicle approaching, realized that she was not seen by its driver, and somehow evaded the collision. The idea that she could have made eye contact with the driver of the vehicle at some point in time is highly unrealistic in the circumstances, and is no more than speculative. In summary, the plaintiff did not have a duty to positively ascertain the defendant’s intentions nor did she have any means to do so.
 The defendants rely upon Brumm v. Inglis,  B.C.J. No. 1181. However, that case is clearly distinguishable. There, the plaintiff walked in front of the defendant’s vehicle as it was stopped at an exit from a driveway onto a busy street, waiting for a break in heavy traffic. The plaintiff could see the driver of the vehicle. She chose to walk in front of the vehicle, which pulled forward as she did so. In this context, Mr. Justice Pitfield stated:
She knew of the defendant’s intended actions. She knew or should have known there was danger to her personal safety if she passed in front of the vehicle without first making eye contact with the defendant and the vehicle accelerated suddenly in an attempt to enter the busy flow of traffic.
 The circumstances of the case at bar bear no resemblance to those in Brumm. More specifically, in the case at bar, it cannot be said that the plaintiff “knew of the defendant’s intended actions” other than perhaps in a general way, nor can it be said that there was something that she realistically could or should have done or refrained from doing in consideration for her own safety.
 I conclude that the defendants have not established that the plaintiff was contributorily negligent. It follows that the defendants are fully liable for the accident.