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The Duty of Care in Responding to Potential Hazards

March 3, 2022

British Columbia

,

Canada

Issue

How have courts apportioned liability where a pedestrian who was crossing the street against the traffic control signal was struck by a speeding motorist who had the right of way but made no attempt to avoid the collision?

Conclusion

Where an accident occurs on a highway, it a useful starting place to determine who had the right of way in accordance with the prevailing rules of the road. Whoever has the right of way is entitled to assume that others will abide by the rules of the road but cannot do so without regard for his own safety or the safety of others. (Enright v. Marwick)

Regardless of who has the right of way, however, there is a duty upon drivers and pedestrians alike to keep a proper lookout and take reasonable precautions in response to apparent potential hazards. Depending on the circumstances, from a driver’s perspective one such hazard may be a jaywalking pedestrian. If it is reasonably foreseeable or apparent that a pedestrian will disregard the law and thus create a hazardous situation, a driver is obliged to take all reasonable steps to avoid a collision. In such circumstances, if the driver has a sufficient opportunity to avoid the collision, but does not take appropriate evasive action, the driver will be found negligent. The standard required of drivers in responding to pedestrian-created hazards such as jaywalking is not one of perfection. The applicable standard of care is one of reasonable prudence in all of the circumstances. Where a plaintiff pedestrian and defendant driver both fail to meet the requisite standard of care and an accident ensues, the court may apportion liability between them. Before liability will be apportioned, however, the defendant must establish that the plaintiff’s fault was a proximate, or effective, cause of the loss. (Hmaied v. Wilkinson)

Where a driver approaches a crosswalk he or she does so under a heightened duty of care, given the potential risk created by a pedestrian crossing of a roadway. (Kaiser v. Williams)

In Karran v. Anderson, the plaintiff was injured when she was struck by the defendant's truck while she was walking against the light in a marked crosswalk at the intersection of Howe and Smithe Streets, in the City of Vancouver. Cars were stopped in the two lanes adjacent to the defendant. The defendant struck the plaintiff as she stepped into his lane. The defendant had not reduced his speed as he approached the intersection and had maintained it virtually to the point when he hit the plaintiff. Cohen J. ruled that the defendant owed a duty of care to the plaintiff, despite the fact that he had a green light, and that he had failed to keep a proper lookout by not observing that vehicles ahead of him in the adjacent lanes had stopped at the intersection. Cohen J. apportioned liability 75% to the plaintiff and 25% of the defendant. By crossing against the light and jogging across, the street the plaintiff's conduct constituted a serious departure from the standard of care expected of a pedestrian.

In Murdoch v. Biggers, the plaintiff was injured when she was struck by the defendant while she was crossing the street. The plaintiff was running across at a marked crosswalk, but was crossing against the light. Despite this, the first two lanes of traffic had stopped for the plaintiff. The defendant was unable to stop in time and hit the plaintiff when she entered into her lane. Power J. concluded that the defendant had the right of way since she was proceeding on a green light, while the plaintiff breached a number of statutory duties. Power J. stated that the plaintiff's negligence contributed significantly to the accident. However, Power J. ruled that the defendant did not meet the required standard of care. The defendant had failed to keep a proper lookout by failing to observe the plaintiff's entry into the crosswalk and by failing to notice that the vehicles in the other lanes had stopped for the plaintiff. Power J. ruled that, given the plaintiff's significant negligence, 75% of the fault of the accident should be attributed to her and only 25% to the defendant.

In Molloy v. Sayer, Fulton J. considered a collision with a pedestrian plaintiff who was crossing Hastings Street in a marked crosswalk controlled by a flashing light. Thoroughly familiar with the intersection, the defendant was approaching and saw the plaintiff and others standing at the side of the street. The defendant looked up briefly at the signal and drove across the intersection when he struck the plaintiff whom he had not seen leave the sidewalk. The light control had not been activated by the plaintiff. The defendant struck the plaintiff without braking. It was only after impact that he applied his brakes. Fulton J. ruled that the defendant had not breached his duty of care and had done everything a reasonable person could do by observing the pedestrians at the side of the road, observing that the cross-walk was empty and that no one was moving towards the button. He had then continued at a reasonable speed so that he could stop if the light changed, but the light never changed. The plaintiff's claim was dismissed.

In Marcena v Thomson, the plaintiff and his wife were jaywalking across Yates Street when his wife was struck by the defendant. The plaintiff initiated the jaywalking and the couple were proceeding quickly and were jogging. Two vehicles stopped in the first lane. The couple proceeded in front of the first of these two vehicles and jogged into lane two without looking to their left. The plaintiff's wife was struck in lane two. She was wearing a bright sweater and was visible. The plaintiff and his wife were not at a crosswalk. Power J. concluded that though the plaintiff and his wife had been negligent, the defendant bore some responsibility for the accident. There was no evidence that the defendant had taken any precautions to avoid the collision. Power J. apportioned liability 25% to the defendant for failing to keep a look out and failing to see what there was to be seen, and failing to take appropriate evasive action.

In Kaiser v. Williams, the plaintiff was struck while jogging across a street at a marked cross walk. Another vehicle in the closest lane to the plaintiff had stopped. She was struck by the defendant who was driving in the next lane over. The crosswalk's lights were lit. Though the plaintiff had breached her obligations by failing to look back to ensure that the defendant's vehicle was stopping, Barrow J. ruled that the defendant bore the vast majority of the responsibility for the accident. Liability was apportioned 85% on the defendant. Barrow J. emphasized that the defendant should have noticed the plaintiff, given that he was approaching a crosswalk and there was a vehicle ahead that had already stopped. He should have slowed down to a speed that would have allowed him to stop on reasonably short notice.

Law

Section 179 of the Motor Vehicle Act, RSBC 1996, c 318 sets out the right of way between vehicles and pedestrians:

Rights of way between vehicle and pedestrian

179 (1)Subject to section 180, the driver of a vehicle must yield the right of way to a pedestrian where traffic control signals are not in place or not in operation when the pedestrian is crossing the highway in a crosswalk and the pedestrian is on the half of the highway on which the vehicle is travelling, or is approaching so closely from the other half of the highway that he or she is in danger.

(2) A pedestrian must not leave a curb or other place of safety and walk or run into the path of a vehicle that is so close it is impracticable for the driver to yield the right of way.

(3) If a vehicle is slowing down or stopped at a crosswalk or at an intersection to permit a pedestrian to cross the highway, the driver of a vehicle approaching from the rear must not overtake and pass the vehicle that is slowing down or stopped.

(4) A pedestrian, a cyclist, the operator of a regulated motorized personal mobility device or the driver of a motor vehicle must obey the instructions of an adult school crossing guard and of a school student acting as a member of a traffic patrol where the guards or students are

(a) provided under the School Act,

(b) authorized by the chief of police of the municipality as defined in section 36 (1),

(c) if located on treaty lands, authorized by the chief of the police force responsible for policing the treaty lands, or

(d) if located on Nisg̱a'a Lands, authorized by the chief of the police force responsible for policing the Nisg̱a'a Lands.

In Enright v. Marwick, 2004 BCCA 259 (CanLII), the Court of Appeal explained the proper approach to determining liability in collisions between pedestrians and motorists:

[21] "Right of way" is not defined by the Motor Vehicle Act. The 6th edition of Black's Law Dictionary[1] defined the term in this way: "'Right of way' is also used to refer to a preference of one of two vehicles, or as between a vehicle and a pedestrian, asserting right of passage at the same place and time, but it is not an absolute right in the sense that possessor thereof is relieved from duty of exercising due care for his own safety and that of others."

[22] In my view this correctly defines the notion of a right of way and its position in the law of negligence. Where an accident occurs on a highway, it a useful starting place to determine who had the right of way in accordance with the prevailing rules of the road. Whoever has the right of way is entitled to assume that others will abide by the rules of the road but cannot do so without regard for his own safety or the safety of others.

In Hmaied v. Wilkinson, 2010 BCSC 1074 (CanLII), Dickson J. explained that, even where a statutorily defined right of way exists, both pedestrians and vehicles have a duty to keep a proper lookout and take reasonable precautions:

[22] When an accident occurs on a highway, the starting point for analysis is a determination of who had the right of way. Generally speaking, the party with the right of way is entitled to assume that other highway users will obey the rules of the road: Enright v. Marwick, 2004 BCCA 259 at ¶ 22. In particular, drivers are ordinarily entitled to expect that adult pedestrians will not jump out directly in front of them as they are proceeding lawfully along their way: Enright, supra at ¶ 35; Ibaraki v. Bamford, [1996] B.C.J. No. 724 at ¶ 12-13.

[23] Regardless of who has the right of way, however, there is a duty upon drivers and pedestrians alike to keep a proper lookout and take reasonable precautions in response to apparent potential hazards: Nelson (Guardian ad litem of) v. Shinske (1991), 1991 CanLII 11795 (BC SC), 62 B.C.L.R. (2d) 302 (B.C.S.C.); Karran v. Anderson, 2009 BCSC 1105. Depending on the circumstances, from a driver’s perspective one such hazard may be a jaywalking pedestrian: Ashe v. Werstiuk, 2003 BCSC 184, upheld 2004 BCCA 75; Claydon v. Insurance Corp. of British Columbia, 2009 BCSC 1077. If it is reasonably foreseeable or apparent that a pedestrian will disregard the law and thus create a hazardous situation, a driver is obliged to take all reasonable steps to avoid a collision. In such circumstances, if the driver has a sufficient opportunity to avoid the collision, but does not take appropriate evasive action, the driver will be found negligent: Karran, supra; Beauchamp v. Shand, 2004 BCSC 272.

[24] The standard required of drivers in responding to pedestrian-created hazards such as jaywalking is not one of perfection. For example, in Burke v. Leung, [1996] B.C.J. No. 938 (S.C.) Kirkpatrick J. (as she then was) found the defendant driver was not negligent when he struck a pedestrian who ran, mid-block, into his path, despite the fact that other drivers in the area were able to stop in time: see also Addison v. Nelles, 2003 BCSC 1860, upheld 2004 BCCA 623; Clifford v. Slater, 2007 BCSC 177. The applicable standard of care is one of reasonable prudence in all of the circumstances.

[...]

[27] Where a plaintiff pedestrian and defendant driver both fail to meet the requisite standard of care and an accident ensues, the court may apportion liability between them. Before liability will be apportioned, however, the defendant must establish that the plaintiff’s fault was a proximate, or effective, cause of the loss: McLaughlin v. Long, 1927 CanLII 53 (SCC), [1927] S.C.R. 303 (S.C.C.). In the words of Groberman J. (as he then was) in Bevilacqua v. Altenkirk, 2004 BCSC 945 at ¶ 38:

... It is not enough for the defendant to demonstrate that the plaintiff failed to take reasonable care for his own well-being; the defendant must also demonstrate that the want of care was a causative factor in the plaintiff’s loss.

In Kaiser v. Williams, 2015 BCSC 646 (CanLII), the plaintiff was struck while jogging across a street at a marked cross walk. Another vehicle in the closest lane to the plaintiff had stopped. She was struck by the defendant who was driving in the next lane over. The crosswalk's lights were lit. Barrow J. explained the heightened duty of care owed by a driver approaching a pedestrian crossing:

[62] Under the common law, where a driver approaches a crosswalk he or she does so under a heightened duty of care, given the potential risk created by a pedestrian crossing of a roadway. This was addressed in Niitamo v. Insurance Corporation of British Columbia, 2003 BCSC 608, where the plaintiff was struck and injured while riding his bicycle through a marked crosswalk at an intersection between two arterial highways. Ballance J. wrote at para. 22:

[22] …In my view, in approaching a marked crosswalk in anticipation of crossing through it, a motorist assumes a heightened duty to take extreme care and maintain a vigilant lookout for those who might be in the crosswalk. It is clear from [the independent witness]’s evidence that the plaintiff was in the well-lit crosswalk and ought to have been seen by a cautious motorist ahead of time. He was riding at a "regular pace". There was no evidence to indicate that the motorist attempted to brake or swerve out of the way just prior to striking [the plaintiff]. …The evidence suggests that the motorist was oblivious to the presence of [the plaintiff].

[63] Similar comments were made by Russell J. in Anderson v. Kozniuk, 2011 BCSC 1678, aff’d 2013 BCCA 46, where she reasoned that “[t]he very presence of [a] marked crosswalk should [be] an indication to [a motorist] of the possible presence of pedestrians in the area” (at para. 69).

[64] As noted at the outset of these reasons, the starting point for the analysis of the issue of liability is the determination of who had the right of way (Enright v. Marwick at para. 22).

Though the plaintiff had breached her obligations by failing to look back to ensure that the defendant's vehicle was stopping, Barrow J. ruled that the defendant bore the vast majority of the responsibility for the accident. Liability was apportioned 85% on the defendant. Barrow J. emphasized that the defendant should have noticed the plaintiff, given that he was approaching a crosswalk and there was a vehicle ahead that had stopped. He should have slowed down to a speed that would have allowed him to stop on reasonably short notice:

[71] However, I do find that Ms. Kaiser breached her obligation under s. 179(2) when she proceeded into the crosswalk without looking back to her left to ensure Mr. Williams vehicle was slowing to a stop as she assumed it would. While I find Ms. Kaiser had the right of way under s. 131(4) when she stopped at the crosswalk and activated the flashing yellow lights as she submits, as mentioned at the outset of these reasons, although she was “entitled to assume that others will abide by the rules of the road” she could not do so “without regard for [her] own safety or the safety of others” (Enright v. Marwick at para. 22).

[72] Had Ms. Kaiser looked back to her left before stepping off the curb, she would have seen that Mr. Williams was not stopping as she expected and that he was so close to her that he would hit her when she entered the crosswalk. In short, Ms. Kaiser would have seen that she was “leav[ing] a curb or other place of safety and walk[ing] or run[ning] into the path of a vehicle that [was] so close it [was] impracticable for the driver to yield the right of way.” Thus, I do find Ms. Kaiser was partially at fault for the accident.

[...]

[77] The second circumstance that would have served to put a reasonable motorist on his or her inquiry was the presence of the plaintiff. The plaintiff would have been visible to the defendant before she reached the crosswalk. She was either jogging or walking quickly northbound, or towards the defendant, for a distance of about 14 metres. Her presence in the vicinity of the crosswalk was a circumstance that would have served to cause a reasonable driver to take reasonable care against the possibility that she intended to use the crosswalk. The third circumstance of significance was the presence of Mr. Blazek. He was driving a full-size pickup truck with its headlights on. He was northbound or oncoming to the defendant. He had stopped in the middle of his lane to permit the plaintiff to cross using the crosswalk. There was no intersection in the vicinity of the crosswalk, and the surrounding topography does not suggest that there would be any reason for a vehicle to stop in the middle of the road.

[78] Mr. Williams did not exercise the care required of a reasonable motorist in the circumstances he found himself in on the day of the accident. Indeed, he was oblivious to the plaintiff’s presence. He was oblivious to the presence of the crosswalk, the crosswalk signage and lights, and Mr. Blazek’s pickup truck in the northbound lane. The presence of all of these things gave rise to the increased possibility of a hazard. In my view, the reasonable care required of a motorist in Mr. Williams’ situation required that he slow down to a speed that would allow him to stop on reasonably short notice. I am satisfied that the reason Mr. Williams did not see the plaintiff or appreciate the circumstances that gave rise to the increased possibility of a hazard was that he was distracted. Rather than paying attention to the presence of potential hazards, he was concerned with following the instructions he was receiving from his wife in order to access the golf course to which they were en route. Mr. Williams continued to travel at a speed in excess of the posted limit until the instant before impact. All of this serves to illustrate that Mr. Williams was in breach of his duty of care.

[79] Ms. Kaiser acknowledges she also had an obligation to take care for her own safety. In her closing submissions, she suggests that the only “acts of fault or negligence” on her part was “not taking a second look to confirm [Mr. Williams’ vehicle] had yielded to her right of way.” As I have said, Ms. Kaiser was aware of Mr. Williams’ approaching vehicle. Upon arriving at the crosswalk she had looked to her left and saw the defendant but mistakenly assumed he was slowing down. She then looked to her right and made eye contact with and waved to Mr. Blazek. Without checking to her left again, she proceeded into the crosswalk. Had she looked again to her left before doing so, her mistaken assumption as to the anticipated behaviour of the defendant’s vehicle would have been apparent to her, and the accident could have been avoided. That being said, Ms. Kaiser had otherwise fulfilled her obligation to take care of her own safety. She was crossing at a marked crosswalk after activating the crosswalk lights on a bright sunny day. She stopped long enough to acknowledge Mr. Blazek and that he had seen her prepare to cross. She was wearing bright clothing.

[...]

[86] In the result, considering all the circumstances I find Mr. Williams 85 percent liable for the accident and Ms. Kaiser 15 percent liable.

In Karran v. Anderson, 2009 BCSC 1105 (CanLII) ("Karran"), the plaintiff was injured when she was struck by the defendant's truck while she was walking against the light in a marked crosswalk at the intersection of Howe and Smithe Streets, in the City of Vancouver. Cars were stopped in the two lanes adjacent to the defendant. The defendant struck the plaintiff as she stepped into his lane. The defendant had not reduced his speed as he approached the intersection and had maintained it virtually to the point when he hit the plaintiff. Cohen J. ruled that the defendant owed a duty of care to the plaintiff, despite the fact that he had a green light, and that he had failed to keep a proper lookout by not observing that vehicles ahead of him in the adjacent lanes had stopped at the intersection:

[65] Thus, in the case at bar the first issue to decide is whether the defendant owed a duty of care to the plaintiff with regard to the circumstances that existed in the intersection at the time of the accident. In my opinion, he did. I find that the possibility of danger emerging was reasonably apparent such that special precautions should have been taken by the defendant: there was rush hour traffic; despite the fact that the traffic light for southbound traffic on Howe Street had turned to green, the vehicles in the middle two lanes on Howe Street immediately to the west of the defendant’s lane of travel did not proceed through the intersection; westbound traffic on Smithe Street was backed up into the intersection preventing some westbound vehicles from proceeding through the intersection; there were pedestrians in the area of the intersection; and, the defendant’s view of the intersection was blocked by the southbound vehicles that were stopped in the middle two lanes on Howe Street.

[66] Having found that a duty existed, the next issue for determination is whether the defendant exercised the standard of care necessary to avoid breaching that duty. In my opinion, the defendant did not meet the standard of care placed upon him by the circumstances.

[67] The defendant was proceeding on a green light and thus had the right of way. However, I find that the defendant did not keep a proper lookout. He failed to observe that there were vehicles stopped in the middle two lanes on Howe Street. I find that by failing to observe that the vehicles in the middle two lanes had not proceeded on the green light, and proceeding into the intersection at 50 km/h, he acted in breach of the duty placed upon him to take special precautions in the circumstances.

[68] Finally, I find that the opportunity existed for the defendant to take action to avoid colliding with the plaintiff. The evidence which supports this finding is set out in the expert report of Mr. Donald J. Rempel, an expert witness called by the plaintiff and qualified by the Court as a mechanical engineer with a specialty in accident reconstruction.

Cohen J. apportioned liability 75% to the plaintiff and 25% of the defendant. By crossing against the light and jogging across the street the plaintiff's conduct constituted a serious departure from the standard of care expected of a pedestrian:

[107] In assessing the respective fault and blameworthiness of the parties as contemplated in Cempel, courts are to evaluate the extent or degree to which each party departed from the standard of care each party owed under the circumstances: Alberta Wheat Pool v. Northwest Pile Driving Ltd., 2000 BCCA 505 at para. 46. Finch J.A. (as he then was) described the range of blameworthiness, as follows:

Fault may vary from extremely careless conduct, by which the party shows a reckless indifference or disregard for the safety of person or property, whether his own or others, down to a momentary or minor lapse of care in conduct which, nevertheless, carries with it the risk of foreseeable harm.

[108] In balancing the respective blameworthiness of the parties in the instant case, the plaintiff’s conduct constituted a serious departure from the standard of care expected of a pedestrian who lived in the area of the accident and was very familiar with the intersection and the surrounding streets. She appreciated that it was rush hour and traffic was heavy; she entered the crosswalk against the light, and then jogged through the crosswalk in front of vehicles that had the green light. I agree with the defendant that from the time the plaintiff entered the crosswalk and jogged across the street against the light the plaintiff created a risk of harm and that it was her negligence which came first in time.

[109] The negligent conduct of the defendant who was proceeding at the speed limit in his lane of travel with the light in his favour is primarily that he failed to observe that the vehicles stopped in the two middle lanes adjacent to his lane of travel did not proceed on the green light and that he did not react to the situation in time to avoid the accident.

[110] In my opinion, these circumstances dictate that 75% of the fault for the accident should be borne by the plaintiff, and 25% by the defendant.

In Murdoch v. Biggers, 2012 BCSC 747 (CanLII), the plaintiff was injured when she was struck by the defendant while she was crossing the street. The plaintiff was running across at a marked crosswalk, but was crossing against the light. Despite this, the first two lanes of traffic had stopped for the plaintiff. The defendant was unable to stop in time and hit the plaintiff when she entered into her lane. Power J. concluded that the defendant had the right of way since she was proceeding on a green light, while the plaintiff breached a number of statutory duties. Power J. stated that the plaintiff's negligence contributed significantly to the accident:

[25] The defendant had a statutory right of way pursuant to the Motor Vehicle Act, R.S.B.C. 1996, c. 318, s. 127 (“MVA”), since she was proceeding on a green light.

[26] The plaintiff, on the other hand, breached a number of statutory duties under the MVA including:

1) obeying traffic controls (s. 125),

2) obeying the instructions of the applicable device (Red light, s.129(4)(a))--“a pedestrian facing a red light must not enter the roadway unless instructed that he may do so by a traffic control signal”--and

3) obeying pedestrian controls (s. 132), against which the plaintiff proceeded.

[...]

[28] In this case, Ms. Murdoch left the traffic island, a place of safety, against a red light and pedestrian controls. Yet I cannot say that she did so in such a manner as to make it impracticable for the drivers southbound on Blanshard to yield the right of way. The vehicles in the westernmost two lanes were able to yield for Ms. Murdoch. Therefore, I do not find that Ms. Murdoch breached s. 179(2). In any event, I am not convinced that s. 179(2) is intended to apply in circumstances like this, where there are light signals directing vehicle and pedestrian movement.

[29] Clearly, however, in light of all Ms. Murdoch’s other statutory duties and the circumstances, including the high volume of traffic at the time and the red lights for both pedestrians and drivers, it was very reckless of her to enter the crosswalk. Her own negligence contributed significantly to the accident.

After considering Karran, Power J. ruled that the defendant did not meet the required standard of care. The defendant failed to keep a proper lookout by failing to observe the plaintiff's entry into the crosswalk and by failing to notice that the vehicles in the other lanes had stopped for the plaintiff:

[32] In the case before me, I find that the defendant owed a duty of care to the plaintiff with regard to all of the circumstances that existed in the intersection at the time of the accident. Traffic was so heavy and congested that special caution should have been taken by the defendant as she approached the crosswalk even though she was proceeding on a green light.

[33] In this case, I do not believe that the defendant exercised the appropriate standard of care to avoid breaching that duty. The drivers in vehicles in the two lanes to her right were able to observe and stop for the plaintiff, and a driver behind her (Ms. Larson) was able to see Ms. Murdoch. Mr. Lukinuk was able to observe that something was happening in his rear-view mirror. In the circumstances, I find that the defendant failed to keep a proper lookout by failing to observe Ms. Murdoch’s entry into the crosswalk and by failing to observe that vehicles in the two lanes to her right had stopped for Ms. Murdoch. I find that if the defendant had in fact been keeping a sufficient look out, she would have been able to stop for Ms. Murdoch and avoid the collision.

Power J. ruled that given the plaintiff's significant negligence, 75% of the fault of the accident should be attributed to her and only 25% to the defendant:

[34] In balancing the respective blameworthiness of the parties in this case, as in Karran, the plaintiff’s negligence came first in time by entering the crosswalk against the light. She created a risk of harm that was significant. Ms. Larson was shocked by Ms. Murdoch’s decision to enter the crosswalk in those circumstances. In many respects, Ms. Murdoch’s conduct can be described in colloquial terms as every driver’s worst nightmare.

[35] In contrast, the defendant’s negligence is limited to her failing to keep a better lookout in circumstances where she had the right of way.

[36] In all of the circumstances, I conclude that the 75% of the fault for the accident should be borne by the plaintiff and 25% by the defendant.

[37] Costs may be spoken to if they cannot be agreed to by the parties.

In Molloy v. Sayer, [1976] B.C.J. No. 432, Vancouver Registry No. 31907/74, October 6, 1976, Fulton J. considered a collision with a pedestrian plaintiff who was crossing Hastings Street in a marked crosswalk controlled by a flashing light. Thoroughly familiar with the intersection, the defendant was approaching and saw the plaintiff and others standing at the side of the street. The defendant looked up briefly at the signal and drove across the intersection when he struck the plaintiff whom he had not seen leave the sidewalk. The light control had not been activated by the plaintiff. The defendant struck the plaintiff without braking. It was only after impact that he applied his brakes. Fulton J. considered the duty required by the defendant approaching the intersection:

25 First I am of the view that the words of the section "in such a manner that he is able to cause the vehicle to stop before reaching the ... crosswalk ... if such a stop should become necessary" are not applicable ... here. Surely the words "if a stop should become necessary" must be taken to refer to a stop which the driver perceives, or ought to perceive, to be necessary. ... To interpret the words so as to mean that a driver approaching a crosswalk controlled by a flashing green light, with no indication that anyone is on or about to enter the walk, must nevertheless be able to stop before entering the walk if someone darts into that walk in front of him, without any previous warning of intention, when the vehicle is, say, 5 or 20 feet from the walk, would be to distort the logic of what the section requires. To hold that the duty is to approach so that he can stop without hitting someone who enters the intersection without warning would require in fact that all vehicles must slow to not more than 5 m.p.h. - if not indeed stop - before actually crossing the line into the intersection, whatever the signal may show, because only in that way could he be certain that he could make the virtually instantaneous stop that would be "necessary" to avoid striking someone who enters without such warning.

26 Next, even if the duty be interpreted in this way so that the conduct of the Plaintiff in continuing to approach the crossing without reducing his speed be a breach of that duty, the question arises whether that was, in the words of Cartwright J. in giving the judgment for the majority in the Sterling Trusts case (at pp. 329-30) "an effective cause of the (Plaintiff's) injuries". Although I may be under a statutory duty to yield the right-of-way to a vehicle entering an intersection on my right, if my failure to yield it was not due to my own excessive speed or failure to keep a look-out, but to the other's entry at an excessive speed or from behind an obstruction or in some other manner so that I could not see him in time, can my not in fact yielding the right-of-way be said to be an effective cause of the other's injuries? I am of the view that the only effective cause would be the conduct of the other - and that here, the only effective cause was the conduct of the Plaintiff himself.

Fulton J. ruled that the defendant had not breached his duty of care and had done everything a reasonable person could do by observing the pedestrians at the side of the road; the cross-walk was empty and no one was moving towards the button. He continued at a reasonable speed so that he could stop if the light changed, but the light never changed. The plaintiff's claim was dismissed:

27 In any event, whether the above reasoning be correct or not, if there was breach by the Plaintiff of his statutory duty and if that breach be an effective cause of the Plaintiff's inju

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