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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.

Court victory for pedestrian injured at a crosswalk

crosswalk

Webster & Associates has recently won an important court victory for  a pedestrian injured at a crosswalk. Our client, who had consumed a significant amount of alcohol prior to the accident, was struck by a speeding car while walking in an “unmarked” Vancouver crosswalk. He was thrown some 24 meters and suffered a severe brain injury. ICBC unsuccessfully defended the speeding driver.

The trial was heard in the Vancouver Supreme Court in February 2013. Mr. Daniel Corrin of Webster & Associates was counsel.

The evidence of independent witnesses and engineers showed clearly that driver had been driving at speeds of as much as 90 kph shortly before the collision. According to the “black box data recorder”, 4 seconds before collision in the vehicle slowed down to about 68- 70 kph, then to 66-68 three seconds before impact, 62-66 two seconds before impact and 62-64 one second before impact. The vehicle hit Mr. Alarcon while travelling at about 52-54 kph. Despite the high speeds and the fact that the driver’s vehicle only had his daytime running lights on, instead if his full headlights, ICBC and the driver attempted to blame the pedestrian for his injuries. They argued that the pedestrian should have seen the speeding car and got out of the way in time to avoid the collision. They also argued that his alcohol consumption impaired the Mr. Alarcon’s ability to take proper care of his own safety. Justice S. Griffin did not agree.

In the recent judgment pronounced March 11, 2013 the court found the vehicle driver 100% responsible for the collision and Mr. Alarcon’s injuries. She found that the driver was simply not paying the proper attention he should have been paying under the circumstances. While Mr. Alarcon had consumed significant quantities of alcohol prior to being struck, Justice Griffin found no evidence to show that his alcohol use had affected his ability to pay proper attention to the approaching traffic or that alcohol had contributed to his injuries.

This case also points to the valuable role that “black box” or crash data can play in a trial. This data was only obtained by Webster & Associates through persistence in the discovery process.

 

Safety Tips to Prevent Brain Injury

With the shorter days, cooler temperatures and wet winter weather comes slick road surfaces, low visibility and dangerous driving conditions. Drivers as well as pedestrians and cyclists need to practice extra caution when out on the roads. With the ski season also on our doorstep, skiers and snowboarders need to remind themselves of the inherent safety risks involved in such winter sports.

We thought we’d take a moment to remind you of some very basic safety tips that can help prevent a traumatic brain injury, because too often we see the result of what happens when safety is compromised.  The information presented below should be familiar to most people. It intended as a reminder to take a common sense approach to living safely and keeping your loved ones safe.

Safety Basics for Drivers:image of car accident

  • Set a safe example for your children by always wearing a safety shoulder and lap seat belt.
  • Use car seats or boosters which are CSA approved and appropriate for the size and age of the child.
  • Always decline alcohol when you know you will be driving
  • Always decline rides from anyone who you know or suspect has been drinking alcohol.
  • Speed does kill. Obey posted speed limits.
  • Watch for pedestrians at all times.
  • Make eye contact with pedestrians to ensure that they have seen you.
  • Drive slowly near pedestrians and give them the right of way.
  • Elderly drivers should be encouraged to reduce the amount that they drive, and should not drive in poor weather or at night. Offer to drive them when possible.

It is difficult to judge ourselves and acknowledge when we are no longer able to drive safely. When it is apparent that an elderly driver should hand in his/her license, consider discussing the matter with the driver and his/her family doctor. It is better to stop driving 5 years too early than a second too late.

For more safe driving tips and regulations visit the Transport Canada website.


Safety Basics for Pedestrians:Walk Sign at Cross Walk

  • Use sidewalks whenever possible.
  • If a sidewalk is not available, walk facing oncoming traffic.
  • Cross only at intersections and crosswalks.
  • Never cross the street between parked cars.
  • Check for traffic by looking left, right and left again before crossing a street.
  • Walk only where you are visible to drivers.
  • Always wear reflective clothing at night.
  • Never assume that drivers can see you or know what you are planning to do.

For pedestrian safety tips and statistics on high risk pedestrian accident areas go to the Vancouver Police Department website.

 

Safety Basics for Cyclists:image of cyclist

  • Always come to a full stop at stop signs. Not stopping is illegal under BC’s Motor Vehicle Act, and you can be fined $167.
  • Be visible. Wear brightly coloured clothing so drivers can see you and, if possible, avoid cycling at night.
  • Make eye contact with other road users. Never assume that another cyclist, driver, or pedestrian sees you.
  • Take care when cycling past parked cars to leave enough space for drivers and passengers to open car doors.
  • In traffic, cycle safely and predictably. Signal before turning, and learn the skills needed to control your bike.
  • Yield to pedestrians crossing the street, and to buses when they are leaving a stop.
  • Do not ride on sidewalks or crosswalks unless signs posted allow you to. Walk your bicycle on a sidewalk or a crosswalk.
  • Maintain your bike in good working order. Equip it with a warning bell and use front and rear lights on your bicycle after dark, as required by law.
  • Helmets must be worn according to Provincial Law, and safety vests or reflective clothing are recommended.
  • Do not wear headphones that cover both ears.
  • Take extra care when it’s wet because it will take longer for your brakes to grip and stop your bike.
  • Ride defensively. Watch out for cars.
  • Children cyclists:
    • Children should be old enough (age 7 or 8 ) to fully understand how to ride safely before they are taught to ride a bicycle.
    • A child should be able to straddle a bike with both feet on the ground. Be sure that the bike is the proper size.
    • A child’s hands should be sufficiently large strong to use the levers of a hand brake. Until then, children should only use bikes equipped with back pedal, or coaster brakes.
    • A child must always wear a properly fitted helmet when cycling even short distances.
    • The helmet should be worn low over the forehead just above the eyebrows. It should sit flat on the head, centered above the ears. Ensure that the helmet stays firmly in place by tightening the chinstrap and adjusting the padding.
    • Children should never ride all-terrain vehicles (ATVs) or motorcycles, even with a helmet.
    • Children should learn about and obey all traffic signals and signage.
    • Practice what you teach to be a good role model for children – Always wear a protective helmet, and obey the rules of the road.

More safety cycling safety tips and regulations available at the City of Vancouver website.


Safety Basics for Skiers and Snowboarders:
Image of snowboarder doing a jump

  • Get fit. You will have more control and enjoy skiing more if you are physically fit.
  • Always wear a properly adjusted helmet.
  • Wear proper equipment and have your bindings adjusted correctly.
  • Keep sunglasses and goggles with you. Skiing and snowboarding are a lot more safe and fun when you can see.
  • Take lessons. The quickest way to become a good skier or snowboarder and prevent injury is to take lessons from a qualified instructor.
  • Begin each run slowly and be aware of the snow conditions. Firmer snow makes skiing hard and fast.
  • Keep aware of skiers and snowboarders above and below you. Keeping injury free requires a mental and physical presence.
  • If you accidentally end up on a run that exceeds your ability, side step to a safer area.
  • If you’re tired, stop.
  • Follow the seven safety rules of the slopes:
  1. Always stay in control.
  2. People ahead of you have the right of way.
  3. Stop in a safe place for you and others.
  4. Whenever starting downhill or merging, look uphill and yield.
  5. Use devices to help prevent runaway equipment.
  6. Observe signs and warnings, and keep off closed trails.
  7. Know how to use the lifts safely.

For more tips on ski and snowboard safety visit the Canada Safety Council website.

 

Resources:

Safe Driving – Transport Canada
www.tc.gc.ca/eng/roadsafety/safedrivers-menu-39.htm

Cyclist Safety – City of Vancouver
vancouver.ca/streets-transportation/cycling-safety-tips-and-regulations.aspx

Pedestrian Safety – Vancouver Police Department
vancouver.ca/police/organization/operations/traffic/pedestrian-safety.html

Safety on the Slopes – Canada Safety Council
canadasafetycouncil.org/node/1048

Head Injury Prevention
health.allrefer.com/health/head-injury-prevention.html

Injured while jaywalking – who is at fault? Pedestrian or Driver?

Jaywalking. We all do it on occasion.

Jaywalking – We walk across a roadway not at an intersection — we “jaywalk.” Most times it is generally safe to do this, there are no consequences to anyone, and we go on our way without thinking too much about what had just happened.

But what happens if a collision occurs?

If a pedestrian is injured after being struck by a car while jaywalking, ICBC will almost always tell you it’s your fault.
But the reality is that the courts do not necessarily split liability that way.

At Brain & Injury Law (Webster & Associates), we have had many clients who were hit by vehicles when they tried to walk across a roadway. Often the injuries are very serious. Sometimes the pedestrian is a child who darts onto a road to chase a ball. Sometimes the pedestrian is intoxicated or ill and not paying careful attention when the collision occurs. Often the results are tragic. However, even if the pedestrian did not pay proper attention and contributed to the collision, this may not be the end of the issue.

The courts require motorists to drive cautiously and keep a lookout for pedestrians, especially for those who may be intoxicated or impaired, or for individuals such as young children, who may not be able to fully look out for their own interests. Even a completely competent adult may not be 100% at fault if the driver (who was paying proper attention) could have stopped in time to avoid a collision.

In a very recent case, called Murdoch v. Biggers, 2012 BCSC 747, a 53 year old woman was hit while running to catch a bus. Even though the plaintiff acted recklessly when running across a Victoria street against a red light, the court found that the driver of the vehicle that struck her bore some of the responsibility. If the driver had kept a better lookout the collision would have been avoided. The court awarded the plaintiff 25% of the value of her injuries.

If you or someone you care about has been seriously injured while jaywalking call us to see whether we can assist you.

Contact us today.

Tel: 604.713.8030
Toll free: 1.877.873.0699
Email: info@braininjurylaw.ca