Pedestrian – Car Collisions in Nova Scotia: Who is at fault?

by John McKiggan

As a Nova Scotia car accident lawyer I am frequently asked to help pedestrians who have been injured by a motor vehicle.

Whose fault is it?

If the accident happened in a cross-walk and the pedestrian had the right of way, liability (fault) usually isn’t a big issue. Drives must yield the right of way to pedestrians in a cross-walk.

But many pedestrian – car collisions are not so simple. There are many factors that have to be taken into consideration in determining who may be at fault. In some cases the court may determine that BOTH parties share some degree of fault.

Fault Affects Damages

The question is important to accident victims because if a pedestrian is found to have contributed to an accident, his or her damages are reduced in proportion to the pedestrian’s degree of fault.

In other words, if the pedestrian is found to be 50% at fault, compensation for the pedestrian’s injuries are reduced by 50%

Walking and Listening

The B.C. Supreme Court recently decided a case that assessed fault in a motor vehicle/pedestrian accident, Whelan v. B.C. Transit.

The plaintiff was listening to music on his iPod when he stepped off of the curb to avoid other pedestrians and a BC transit bus struck him from behind on the leg. One of the issues at the trial was who was at fault for the accident.

The trial judge ultimately decided to split liability between the two parties with 40% against B.C. transit and 60% against the plaintiff. Interestingly, Justice Schultes decided that the fact that Mr. Whelan’s listening to his iPod did not factor into his apportionment of liability:

[73] I do not find his use of an iPod to be a meaningful factor in this analysis though. His negligent decision to step onto the road was caused by impatience and a faulty assumption about the actions of the bus driver, and not by any reduction in his ability to hear his surrounding environment.

Dangers of iPod Use While Walking

Not only are there now more cars on the roads than ever before, as well as busier sidewalks, we are also increasingly distracted by our iPods, phones, iPads, etc. An article in the U.K. Daily Mail earlier this year discusses the new dangers that the iPod generation face as pedestrians.

Pedestrian Accidents Triple

According to researchers, in the past six years the numbers of serious accidents that occur while pedestrians are wearing headphones have tripled. The researchers found a particularly severe rise in the amount of injuries to young men, much like Mr. Whelan’s unfortunate accident.

Distracted Driving

I have written about the dangers of distracted driving. See for example: The Deadly Consequences of Distracted Driving and Increase in Nova Scotia Traffic Fatalities: Is Distracted Driving to Blame?

Distracted Walking

I have seen an increase in what I refer to as “Distracted walking” claims. It usually involves pedestrains who are involved in accidents when they are texting or listening to music.

The problem is that pedestrians listening to music can enter a trancelike state where they are not as aware of their surroundings. I have previously posted on the dangers of distracted driving and the effects of “inattentional blindness”: Magic, Misdirection and Distracted Driving

While some studies have shown that listening to music can increase risk of injury, the Court in Whelan did not think it was significant enough in that case to influence the liability assessment.

Have More Questions About Car Accident Claims in Nova Scotia?

I have been representing victims of serious injuries for 22 years. I wrote Crash Course:The Consumers Guide to Car Accident Claims in Nova Scotia to help educate car accident victims and their familes so they can have a better chance of receiving full and fair compensation.

Crash Course is for sale on Amazon for $16.95 (all sales proceeds are donated to charity: but you can get a free copy of Crash Course by contacting us through our website.

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