Pedestrian accidents can be unpredictable and happen to anyone. According to various police statistics, pedestrians account for more than half of all deaths on city-controlled roads across Canada. Of these fatalities, two-thirds are caused by at-fault drivers who fail to take proper care and act irresponsibly in the moments leading up to the collision.
Motor Vehicle Act of Nova Scotia
As a pedestrian, under the Motor Vehicle Act of Nova Scotia you have the right of way if you are already within a crosswalk when a vehicle approaches. However, you do not have the right of way if you have not yet entered the crosswalk. If an oncoming vehicle cannot stop in time to avoid hitting you if you enter it at the last second the pedestrian may be found to be at fault. A pedestrian who crosses the road at an undesignated crossing point must also yield to oncoming vehicles.
The Motor Vehicle Act stipulates that all motor vehicle drivers owe a duty of reasonable care to pedestrians. If a driver fails to exercise due care and causes injury to a pedestrian, he/she may be found negligent. This responsibility is especially likely to be the case if the driver is also shown to have been distracted, fatigued or impaired by intoxication when the collision takes place.
If you are injured by a motor vehicle while walking, you can make a claim against the at-fault driver’s liability insurance policy. However, the driver may not necessarily be found 100% at fault.
In some cases, responsibility will be shared by both driver and pedestrian. For instance, where a pedestrian cannot demonstrate he/she had the right of way liability may be split. I had a claim once where a pedestrian running to catch a bus entered a crosswalk as a bus driver was in the process of making a right hand turn. Liability was split in that situation as the driver should have taken better care to ensure no pedestrians were near the crosswalk while executing the turn but the pedestrian should also not have run into the crosswalk as the bus was executing the turn. As well, if a pedestrian is distracted by smart phone usage or is impaired while crossing the road at or near a crosswalk, the pedestrian may be held partially at fault for the accident.
In civil lawsuits, this sharing of the blame is often labelled as contributory negligence. Contributory negligence refers to the actions of the pedestrian having contributed to one’s own injury or loss, and implies a failure on the part of the injured person to meet the standard of prudence that a reasonable person would be expected to adopt to protect themselves in the situation. Think of the bus example above.
An injured pedestrian being deemed to have contributed to the collision happening will result in their compensation entitlement being reduced in proportion to the percentage of fault the pedestrian was deemed to have shared in the occurrence of the accident.
The driver’s insurance company is equipped with seasoned claims adjusters who investigate the loss as well as defence counsel who will represent the driver/insurer and who will vehemently fight to reduce damages or offer settlements far lower than what a pedestrian may be entitled to by making use of available defenses such as contributory negligence.
What to Do if You are Struck by a Motor Vehicle While Walking
If you are struck by a motor vehicle while walking, first of all obtain the medical treatment you need then strive to take the following steps to the best of your abilities:
- Gather information: Write down as much detailed information as possible about the factual details of the accident and the insurance details of the driver.
- Call the police: Under the Motor Vehicle Act, the police officers who attend the scene of the accident must complete written reports of the accident in the form established by the Registrar of Motor Vehicles of Nova Scotia. The presence of the police will also help ensure that any vulnerable party is not unfairly taken advantage of by a more aggressive personality.
- Document your injuries and take photographic evidence: Photographs of the collision site and general area as well as visible injuries will help support your insurance claim whether it goes to Trial or stays at the adjuster claim level.
- Seek further appropriate medical treatment: Injuries sustained from an accident may have physical and psychological trauma that can have both short and long term effects. Seeking immediate treatment means that you stand a better chance of overall recovery. Medical professionals will be asked to write reports and the more detail you provide them over time will assist them in their report writing which will help strengthen your case.
- Document consequential rehabilitation: Continue to take notes over time by accurately documenting your physical or psychological rehabilitation as well as lost income in order to secure fair compensation.
Contact a Trusted Personal Injury Lawyer
In Nova Scotia, motor vehicle injury and other personal injury claims are subject to a limitation period which begins to run from the time of the incident. If you have been involved in a pedestrian accident, it is imperative that you seek legal support as soon as possible to ensure you understand your rights and can obtain the best chance of fair compensation.
You should avoid the mistake of taking on experienced and informed insurers on your own. Knowledge is power and a personal injury lawyer will help you level the playing field against these sophisticated insurers whose job it is to limit your compensation.
At McKiggan Hebert we believe you should receive all the compensation due to you to assist you recover your health and various eligible claim losses [pain and suffering, lost income, cost of care, etc]. If you are a victim of or have lost a loved one to a pedestrian or motor vehicle accident please call us at (902) 423-2050 or send us an email through our online contact form to learn your rights.