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The Court of Appeal - Affirmation of Responsibility

December 1, 2021

Ontario

,

Canada

Issue

What is the appropriate apportionment of liability for an elderly pedestrain who was struck by a vehicle while crossing the street outside of a crosswalk?

Conclusion

Since the extent to which the defendant and the extent to which the plaintiff "caused" the injuries are not related and cannot be compared directly, "causation" cannot be the basis of the allocation of responsibility between them. The apportionment must be made on the basis of the degree to which each person was at fault. It does not say that the apportionment should be on the basis of the degree to which each person's fault caused the damage. So we are not assessing degrees of causation, we are assessing degrees of fault. In this context, fault means blameworthiness. (Snushall v. Fulsang)

If a pedestrian - however elderly - is crossing in the designated crosswalk, their mental capacity is irrelevant. (Morrison et al v. Hooper and v. Young et al)

Based on studies of pedestrians in dark clothing, drivers begin to respond to such a target at distances of 15-76 metres, with a median of 47 metres. (Zsoldos v. Canadian Pacific Railway Company)

In Cooper et al. v. Temos et al., appeal dismissed 1956 CanLII 370 (ON CA), the somewhat inebriated plaintiffs, an older couple, stood in the middle of the road, in the path of the oncoming car, until they were struck by the car. The plaintiffs were found to be 50% liable for the accident.

In Angelopoulos v. Machen, the Ontario Court of Appeal held that failing to see, and striking with considerable force, a plainly visible pedestrian while proceeding in a reverse direction on a one-way street opposite a prohibited parking location is not consistent with the high duty placed on a motorist in these circumstances.

In Otsuji v. Waklen [1991] B.C.J. N. 3090 B.C.S.C., the plaintiff was struck from behind by defendant's vehicle while he was walking along a road, beside a row of parked cars. At the time of the accident, it was dark and raining, although the area was moderately well lit. The plaintiff was wearing dark clothing and was walking in the same direction as cars travelling on that side of the road. The defendant, who had been travelling at slightly under the posted speed limit of 50 km/hour, saw the plaintiff only moments before the impact and braked hard. The defendant was negligent in failing to keep a proper lookout, in not adjusting her speed for the conditions, in failing to adjust her speed and location of travel to take into account the parked cars, a pedestrian street sign and the likelihood of pedestrians walking on the road to get to their parked cars and in failing to see plaintiff in time to avoid the accident. She was obliged to keep a lookout to her right as well as straight ahead, given the existence of the parking lane. The plaintiff was 25% liable for walking on the street rather than the available sidewalk, in walking with the traffic rather than facing it and in wearing dark clothing that made it difficult for traffic to see him. He had to keep a proper lookout over his left shoulder in order to see vehicles approaching.

In Christie (Guardian ad litem of) v. Insurance Corp. of British Columbia [1990] B.C.J. No. 2899 B.C.S.C, the plaintiff was 17 and in Grade 12 at the time of the accident. He was returning home with a companion at 12:00 midnight when he was struck from behind by a vehicle whose driver failed to stop at the scene. The plaintiff and his companion were wearing dark clothing and the street was dark. There was no sidewalk on that portion of the highway and the Plaintiff and his companion proceeded on the gravel shoulder of the highway in the same direction as the traffic coming from behind them. The plaintiff was contributorily negligent for violating Section 184 of the Motor Vehicle Act which required pedestrians to walk in opposite direction to oncoming traffic where no sidewalk was provided. The plaintiff also failed to keep a proper lookout considering the condition and the dark clothing he was wearing. Liability was assessed to the plaintiff at 35 percent.

In Rautins v. Starkey, the defendants had failed to satisfy the court that the plaintiff was contributorily negligent. Though the defendant wore dark clothing, there was sufficient light to see the plaintiff if one had been looking in that line of sight. The plaintiff also had flashers on her running shoes and reflective stripes on her pants. She was clearly there to be seen. The defendants would have seen her if either of them looked in the direction of the plaintiff or if they looked would observe her regardless of the clothes she was wearing.

Law

In Snushall v. Fulsang, 2005 CanLII 34561 (ON CA), the Ontario Court of Appeal held that the measure of contributory negligence should not be based on how much each party contributed to causation, but on how blameworthy each party was:

[29] Since the extent to which the defendant and the extent to which the plaintiff "caused" the injuries are not related and cannot be compared directly, "causation" cannot be the basis of the allocation of responsibility between them. Lambert J.A. of the British Columbia Court of Appeal pointed this out in Cempel v. Harrison Hot Springs Hotel Ltd., 1997 CanLII 2374 (BC CA), [1997] B.C.J. No. 2853, 43 B.C.L.R. (3d) 219 (C.A.), by criticizing apportionment of responsibility based on an assessment of relative degrees of causation as between the plaintiff and defendant. He drew a distinction between "causation" and "blameworthiness" when he said at para. 19:

I think that such an approach to apportionment is wrong in law. The Negligence Act requires that the apportionment must be made on the basis of "the degree to which each person was at fault". It does not say that the apportionment should be on the basis of the degree to which each person's fault caused the damage. So we are not assessing degrees of causation, we are assessing degrees of fault. In this context, "fault" means blameworthiness.

In Cooper et al. v. Temos et al., 1955 CanLII 386 (ON SC), appeal dismissed 1956 CanLII 370 (ON CA), the somewhat inebriated plaintiffs, an older couple, stood in the middle of the road, in the path of the oncoming car, until they were struck by the car. The plaintiffs were found to be 50% liable for the accident:

FERGUSON J.:—On the evening of September 4, 1954, the plaintiffs (husband and wife, aged 68 and 65 years respectively) were crossing Danforth Rd. near the entrance to the Scarboro Public House, where they had consumed some beer, when Mrs. Cooper was run down by an automobile owned by the defendant James Miley and driven by his son, James Edward Miley, whom I shall refer to as "Miley Sr." and "Miley Jr." respectively. Miley Jr. had been in the Scarboro Public House for some time before the accident and testified that he had consumed 12 glasses of beer. It is contended by the plaintiffs that Miley Jr. was intoxicated at the time of the accident; that his intoxication was caused by the beer he had consumed at the hotel, and that the owners of the hotel are therefore made liable to the plaintiffs for the damages they suffered, by s. 65 of the Liquor Licence Act, R.S.O. 1950 c. 211, which reads in part as follows:

[...]

The defendants contend that the plaintiffs were guilty of contributory negligence causing the accident. The female plaintiff had three glasses of beer, and her husband had four, before they left the hotel. They were crossing Danforth Rd. from east to west and had arrived at the point in the road where they had either turned, or were about to turn, to walk against the traffic, but had not as yet walked northerly as they intended to do. When in that position, and before they had moved northerly, they saw Miley's car come out of the parking-lot and turn south. It was at least 100 ft. away as it issued from the lot, and at least 90 ft. away when its headlights swung directly in their direction. They were clearly in the path of the motor car on their left-hand side of the road and on the righthand side of the road as regards the motor car. They stood facing the oncoming motor car. Had they continued to cross the road I am satisfied that they would have been off the pavement in time to avoid the motor car, but instead they stood transfixed by uncertainty until it was too late for Mrs. Cooper to avoid the motor car.

[...]

As I have found the plaintiffs 50% responsible for this accident, there will be judgment in favour of Mrs. Cooper for the sum of $1,000, and in favour of her husband, Edward William Cooper, for $438.12, with costs. The action is dismissed as against the owners of the Scarboro Public House, with costs.

In Angelopoulos v. Machen, 1992 CanLII 7523 (ON CA), the Ontario Court of Appeal held that failing to see, and striking with considerable force, a plainly visible pedestrian while proceeding in a reverse direction on a one-way street opposite a prohibited parking location is not consistent with the high duty placed on a motorist in these circumstances:

LACOURCIERE J.A. (orally):--The plaintiff/appellant Helen Angelopoulos, a 51-year-old female pedestrian, was struck by the defendant's motor vehicle while attempting to cross Adelaide Street West in the City of Toronto on the morning of January 25, 1985. In these reasons, "appellant" or "plaintiff" refers to Helen Angelopoulos, "respondent" or "defendant" to Charles Machen.

The appellant was in the process of crossing this one-way street, which has four lanes, each approximately three metres wide, for eastbound traffic. In attempting to cross the street from north to south she had stepped into the nearest eastbound travel lane when she was struck by the defendant's vehicle which was reversing and angling towards a zone clearly indicated as a no parking zone on the north side of the street.

[...]

In our opinion, and taking the most favourable view of the confused and contradictory defence evidence, the presumption of negligence placed upon the defendant was not rebutted. The defendant's explanation was that, while reversing and angling his car to park on the north side of the street, he did not see the plaintiff until the moment of impact. Even if the charge had been evenly balanced, the verdict exonerating the defendant of negligence is not supported by the evidence. Failing to see, and striking with considerable force, a plainly visible pedestrian while proceeding in a reverse direction on a one-way street opposite a prohibited parking location is not consistent with the high duty placed on a motorist in these circumstances. We note that the defendant pleaded guilty with an explanation to a charge under s. 122 [am. 1983, c. 63, s. 27; am. 1984, c. 61, s. 5; am. 1989, c. 54, s. 20] of the Highway Traffic Act (now s. 142 of R.S.O. 1990, c. H.8) of failing to see that the movement of his vehicle could be made in safety.

In Morrison et al v. Hooper and v. Young et al, 2010 ONSC 4394 (CanLII), Wilson J. held that if a pedestrian - however elderly - is crossing in the designated crosswalk, their mental capacity is irrelevant:

[1] Anna Morrison was 84 years old when she was crossing as a pedestrian two blocks from her home at or near the light at Victoria Park and Lynne Valley Road on December 3, 2003. She was violently struck by the defendant, Muriel Hooper’s vehicle and sustained serious injuries, including a subacute subdural hematoma. She has no recollection of the accident. Ms. Morrison and her family initiated this claim. Arlene Young is the daughter of Ms. Morrison and Ron Morrison is her son. They are both plaintiffs in this action.

[2] Whether Ms. Morrison was walking appropriately in the crosswalk designated for pedestrians at the traffic light, or whether she crossed Victoria Park north of the pedestrian crosswalk is an issue for trial.

[3] The defendant in the Statement of Defence alleges that “at the time of the accident [Ms. Morrison] was mentally incompetent such that her judgment and appreciation of danger was impaired.” The defendant then initiated a counterclaim against Ms. Young and Mr. Morrison, the children of Ms. Morrison, alleging that they failed to properly supervise the conduct of Anna Morrison and the failure to supervise or monitor her activities caused or contributed directly to the accident.

[4] Arlene Young, plaintiff and defendant by counterclaim, brings this motion for summary judgment seeking to strike the counterclaim pursuant to Rule 21 and Rule 20 of the Rules of Civil Procedure as disclosing no cause of action or failing to raise a triable issue. Although this motion is brought only by Arlene Young, the daughter, counsel for the defendant agrees that the results of the motion apply to the counterclaim initiated against Ron Morrison, the son.

[...]

[60] This is an unfortunate but routine traffic accident involving a pedestrian going about her regular activities near her home. There is an issue about contributory negligence, depending on what the findings of fact are with respect to where Ms. Morrison was crossing. Unfortunately, pedestrians may be at times imprudent having nothing to do with mental capacity. If Ms. Morrison was crossing in the designated crosswalk, then it appears to me that her mental capacity is irrelevant.

In Zsoldos v. Canadian Pacific Railway Company, 2007 CanLII 7583 (ON SC), appeal dismissed, 2009 ONCA 55, application for leave to appeal dismissed, 2009 CanLII 36263 (SCC), cited expert evidence that based on studies of pedestrians in dark clothing, drivers begin to respond to such a target at distances of 15-76 metres, with a median of 47 metres:

[77] Based on studies of pedestrians in dark clothing, drivers begin to respond to such a target at distances of 15-76 metres, with a median of 47 metres. She concluded that an average distance over which an alerted driver would begin to respond to a visual cue would range from 47 to 52 metres.

In Lloyd v. Rutter, 2003 CanLII 49380 (ON SC), the Court considered multiple case that apportioned liability between the driver and the injured pedestrian:

C] Otsuji v. Waklen [1991] B.C.J. N. 3090 B.C.S.C.

Facts: Plaintiff, aged 28, suffered personal injuries in two motor vehicle accidents five months apart. Liability was admitted with respect to the first accident, but not the second. In the first accident, Plaintiff suffered mild to moderate soft tissue injuries. He was off work for two weeks and unable to participate in any of his pre-accident leisure activities for one to two months. By the date of the second accident, he was 90 percent recovered. The second accident occurred when the Plaintiff was struck from behind by Defendant's vehicle while he was walking along a road, beside a row of parked cars. At the time of the accident, it was dark and raining, although the area was moderately well lit. The Plaintiff was wearing dark clothing and was walking in the same direction as cars travelling on that side of the road. The Defendant, who had been travelling at slightly under the posted speed limit of 50 km/hour, saw the Plaintiff only moments before the impact and braked hard.

Decision: The Defendant was negligent in failing to keep a proper lookout, in not adjusting her speed for the conditions, in failing to adjust her speed and location of travel to take into account the parked cars, a pedestrian street sign and the likelihood of pedestrians walking on the road to get to their parked cars and in failing to see Plaintiff in time to avoid the accident. She was obliged to keep a lookout to her right as well as straight ahead, given the existence of the parking lane. The Plaintiff was 25% liable for walking on the street rather than the available sidewalk, in walking with the traffic rather than facing it and in wearing dark clothing that made it difficult for traffic to see him. He had to keep a proper lookout over his left shoulder in order to see vehicles approaching.

[...]

D] Christie (Guardian ad litem of) v. Insurance Corp. of British Columbia [1990] B.C.J. No. 2899 B.C.S.C

Facts: The Plaintiff was 17 and in Grade 12 at the time of the accident. He was returning home with a companion at 12:00 midnight when he was struck from behind by a vehicle whose driver failed to stop at the scene. The Plaintiff and his companion were wearing dark clothing and the street was dark. There was no sidewalk on that portion of the highway and the Plaintiff and his companion proceeded on the gravel shoulder of the highway in the same direction as the traffic coming from behind them.

Decision: Judgment for the Plaintiff. The Plaintiff was contributorily negligent for violating Section 184 of the Motor Vehicle Act which required pedestrians to walk in opposite direction to on-coming traffic where no sidewalk was provided. The Plaintiff also failed to keep a proper lookout considering the condition and the dark clothing he was wearing. Liability was assessed to the Plaintiff at 35 percent.

In Rautins v. Starkey, 2004 CanLII 41173 (ON SC), the defendants had failed to satisfy the court that the plaintiff was contributory negligent. Though the defendant wore dark clothing, there was sufficient light to see the plaintiff if one had been looking in that line of sight. The plaintiff also had flashers on her running shoes and reflective stripes on her pants. She was clearly there to be seen.The defendants would have seen her if either of them looked in the direction of the plaintiff or if they looked would observe her regardless of the clothes she was wearing:

[68] The defendants submit that the plaintiff’s black clothing was a contributory factor for the accident, presumably because she could not been seen in the darkness. As found above, there was sufficient light to see the plaintiff if one had been looking in that line of sight. Willshire was able to see her flashers on her running shoes and that she was jogging from a distance of approximately 250 feet. She also had reflective stripes on her pants. She was clearly there to be seen. Neither defendant testified that they did not see her because of her clothing. If the drivers did not see street signs, the large yellow casings housing the traffic lights etc., which were directly in their line of sight or observe the oncoming westbound vehicles, it is most unlikely that either of them looked in the direction of the plaintiff or if they looked would observe her regardless of the clothes she was wearing. Given my findings concerning the negligence of the drivers, I find that the Defendants have failed to satisfy me that the plaintiff was contributory negligent.

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