Pedestrian crossing the street hit by car resulting in a traumatic brain injury

On June 25th 2010, at around 11:00 pm Mr Alarcon was heading home, on foot, after having had a few drinks with a friend. At the same time, Mr Lee was rushing home in the usual traffic and found himself accelerating to change lanes, and avoid stationary cars. Without his headlights on, and travelling above the limit for that stretch of road, Mr Lee’s car collided with Mr Alarcon, as the latter crossed the street.

In the case of Perez-Alarcon v. Lee (2013 BSC 408), the court sought to determine the onus of liability by understanding a few key circumstances around the incident. Mr Alarcon suffered a severe brain injury as a result of the accident, and the case had been brought by his sister and guardian. The court sought to determine whether Mr Lee was wholly, or partially liable with the extent of damages to be determined by another trial. 

The court explored various expert and witness testimonies with regards to the speed at which Mr Lee was travelling, whether his headlights were on and whether he was paying sufficient attention as he approached the intersection. These questions found that on the basis of the outcomes of these three factual areas, Mr Lee was indeed negligent, as he was speeding, with his headlights off and that he should have seen the pedestrian who by all witness accounts acted in a reasonable manner as he crossed the street. 

The court also questioned the behaviour of Mr Alarcon; his high blood alcohol level, whether he was crossing in a designated area, whether he was running, and whether or not he was paying suitable attention to the traffic. 

Finally, the court explored the liability of the City of Vancouver, by questioning whether road signs and markings had any bearing on whether the driver’s ability to judge the scenario was impaired by misplaced of insufficient road markings.

 As Mr Alarcon crossed the street, he made eye contact with another driver, he was walking normally, and he took every necessary precaution, such that he held no liability for the accident, despite his blood alcohol level being three times higher than the legal driving limit. The facts of the case placed the full liability of Mr Lee, who, in turn, plead that the City was negligent in the placement of road signs, an issue which was quickly disregarded as experts analysed the circumstances of the accident. The question of the city’s liability due to insufficient road markings was explored in more depth, but there was no evidence to show that the markings were misleading in any way.

The judge referred to condition 179(1) of the Motor Vehicles Act, which clearly states that pedestrians have right of way, even where traffic signals are not in place, but that a pedestrian should not begin crossing the street if a vehicle is so close that it would be impracticable for the vehicle to avoid a collision. In this case, Mr Alarcon was crossing at a designated crossing, had already crossed several lanes, and Mr Lee, if he were paying better attention, and travelling at the speed limit, should have been able to avoid the accident.

Mr Alarcon’s life is permanently altered as a result of this accident, insufficient attention paid, and an unfortunate sequence of events. In the case of British Columbia Electric Railway Co. v. Farrer, the pedestrian, who saw a bus briefly but stepped into the road anyway, was found partially liable. In the case of Perez-Alarcon v. Lee, had Mr Alarcon had a lower alcohol tolerance or had he, in fact, run across the street, the outcome and burden of liability may have been substantially different. At the time of the trial, Mr Alarcon was not of sufficient capacity to attend. Accidents do happen, every day, but in these unfortunate events, it is good to have legal professionals, skilled and experienced in the specifics of brain injury to be sure that victims of such are well represented in these, often difficult cases.

Accessing Funding For Brain Injury Survivors


Brian Webster, the founder of Webster & Associates, has been practicing brain injury litigation for over 30 years. He and his litigation team have successfully represented hundreds of survivors of traumatic brain injury throughout BC and around the world.

One of the key issues for all brain injury survivors is accessing funding for care and rehabilitation. Litigation against an insured defendant is often the best avenue for accessing funds, but this is not always available. Additionally insurance policy limits may or may not be sufficient to provide enough care for the brain injury survivor. For those who may be able to litigate, it is critical to have the advice and guidance of an experienced brain injury or neuro-lawyer to ensure the most available money goes to the survivor. In other situations it may be difficult to utilize legal counsel. The purpose of this paper is to provide the reader with an overview of the different methods, through which funds might be obtained, discuss the criteria, the funds available and considerations for access.

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