But over the past decade, pedestrian fatalities and injuries throughout Ontario have risen to record highs. While the first concern after a pedestrian-motor vehicle accident is the health, well-being, and recovery of the injured, this is not the only thing to be considered, particularly when it comes to determining damages. So how does Ontario determine who is at fault in such accidents?
The first thing to realize is that, despite the fact that the person inside the car will invariably fair better than the pedestrian, this does not always mean that the vehicle operator is at fault. In fact, contesting liability often comes down to a matter of percentages. This means that a court must often determine what percentage of the blame for the accident lies with the driver, and what percentage with the pedestrian. However, pedestrians are protected through Section 193(1) of the Highway Traffic Act, which is often called the “reverse onus” clause, which states:
“When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.”
This means that after an accident in which a pedestrian has been injured, the driver of the involved vehicle is initially considered at fault, and must demonstrate his lack of liability, rather than the other way around. The pedestrian, on the other hand, must only prove that they were involved in and negatively affected by the accident.
However, it is not always the case that the driver is entirely at fault for the accident. While they will have to prove that they were driving safely and in accordance with all laws, they may also be able to demonstrate that the pedestrian was jaywalking, crossing under the influence of drugs or alcohol, or even failing to look both ways and be aware of their surroundings.
Proving this does not necessarily mean that the driver’s liability is nil. But in cases where the pedestrian is found to be partially at fault, any damages being awarded to the pedestrian will be split in kind. So, if the judge has awarded the plaintiff $50,000 in damages, but finds them 50% to blame, the amount of damages actually received would be only $25,000. As a result, it is highly recommended to seek the advice of skilled and experienced personal injury lawyers, who will examine the facts of your case and recommend whether seeking damages from the driver is viable.