Keep your head up: pedestrians face real dangers on the street

The driver is presumptively at fault unless they can prove otherwise

by Cody Malloy, McLeish Orlando Lawyers LLP

Perhaps we’ve become numb to the news of pedestrians being struck by vehicles in the Greater Toronto Area. In 2022, 22 pedestrians were killed in motor vehicle collisions in the Toronto streets.

2023 has been a dangerous start to the year for pedestrians in Toronto. On February 3, 2023, a pedestrian was taken to hospital with serious injuries after being struck by a vehicle at Wilson Avenue and Dubray Avenue in Toronto’s Downsview area. On February 6, 2023, a 77-year-old woman who was crossing Jane Street was critically injured by a vehicle making a lefthand turn from Ardagh Street in Toronto’s west end. Although the City of Toronto strives towards the objectives of Vision Zero, a global strategy with the goal of zero traffic-related deaths, we still have strides to make given the recent collisions involving pedestrians in Toronto.

Close Calls from Personal Experience

I’ve had a couple recent close calls walking the streets of Toronto. One night in December when I was walking only a block south of our office, I crossed Yonge Street westbound on the north side of its intersection with Adelaide Street after the light turned green. I noticed a car starting a left-hand turn onto Yonge Street in front of me as I crossed within the crosswalk, but to my surprise, it kept coming towards me. I froze, not knowing if the driver spotted me, but I remained ready to move if necessary. The driver slammed on his brakes and gave me a wave, acknowledging his mistake. A month prior in early January, the same scenario occurred when I crossed westbound on Bay Street on the north side of its intersection with Harbour Street.

Although I can’t put myself in the driver’s mind in the context of my recent close calls, I can only speculate that they weren’t paying attention. As someone who has worked on files involving many motor vehicle collisions involving pedestrians, I ask readers who are drivers to please be on the constant lookout for pedestrians. It’s a heart stopping moment as a pedestrian when you’re not sure if an oncoming driver sees you crossing the street.

The Reverse Onus on Drivers

Section 193(1) of the Highway Traffic Act places a reverse onus on drivers of motor vehicles in collisions involving pedestrians on public roadways. In essence, the driver is presumptively at fault unless they can prove otherwise. Despite pedestrians having the benefit of the reverse onus if they’re struck by a vehicle, I can assure you that you’d rather have great health than a great lawsuit.

Safety Tips for Pedestrians

Consider the two incidents I experienced. I crossed with the green light and within the crosswalk, yet I still was in danger of being struck. The reality of the matter is despite crossing the street with the right of way, I’m no match for an oncoming motor vehicle if the driver doesn’t spot me. Although motor vehicle collisions involving pedestrians are common, this doesn’t mean we can’t decrease their frequency.

Pedestrians still need to look out for themselves, as they can be partially at fault for collision. Contributory negligence can come into play, in which even if the pedestrian is awarded damages at trial, they are reduced by a percentage deemed by the court. Consider the following tips to keep safe as a pedestrian:

• Wear light coloured clothing when it’s nighttime or in lower light conditions, such as when it’s raining to increase your visibility.
• Walk in larger groups or cross in a pack with other pedestrians crossing the same direction as you if you’re walking by yourself.
• Avoid walking on sidewalks close to the curb, as vehicles may accidentally hop a curb while driving.
• If you’re walking on a road without a sidewalk, ensure you walk against traffic (on the left side of the road).
• Keep your head on a swivel and watch for vehicles and cyclists before and while you cross a street.
• If you’re crossing a street with two-way traffic, always look left-centre-right, in that order, for the following reasons:
  • 1) left: the first line of danger is vehicles coming from the left. Vehicles either turning right or heading straight through the intersection you’re crossing would strike a pedestrian first and are out of ranger of visibility if they’re looking straight ahead.
  • 2) centre: the second line of danger is vehicles coming from straight ahead, which are vehicles turning left in front of pedestrians as they cross.
  • 3) right: the last line of danger is vehicles approaching the intersection on the far side of the centre line. You never know if a driver is trying to make the light before it changes, so always ensure you glance to the right as you cross the centre line.
• Pay special attention for emergency vehicles – look for lights and listen for sirens. Emergency vehicles rushing to a call present an extra hazard for pedestrians. Sometimes emergency vehicles may only use their lights, depending on the call, and they may even drive on the wrong side of the road if there’s a traffic jam. If an emergency vehicle is approaching an intersection you’re about to cross, even if you have the right of way, ensure you wait for it to make its way through the intersection completely before crossing.

Jaywalking

Within the City of Toronto, it’s actually legal to jaywalk in certain circumstances. According to the Toronto Municipal Code, pedestrians may cross streets as long as they do not interfere with traffic [1]. If you are going to jaywalk within the City of Toronto, you must be certain that you will not interfere with any oncoming vehicles or cyclists. It is important to note, however, that the reverse onus still applies to drivers even if the pedestrian was jaywalking when the collision occurred.

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