When a person suffers an injury as a result of an accident, whether it be a dog bite, a motor vehicle accident, a slip and fall, or some other circumstance, a lawsuit often ensues in the aftermath, wherein the person who was injured, called the “plaintiff” in legal cases, alleges that they suffered injury as a result of something someone else, legally called the “defendant,” did or not do.

These cases are known as personal injury litigation. One of the first things a court must determine in a personal injury litigation matter is which party is at fault for the accident. While a court may determine that a defendant is entirely responsible for the incident, it is also free to determine liability according to some other metric. For example, where a speeding vehicle was involved in an accident with a vehicle that ran a red light, the court might apportion blame, or responsibility for the accident, at 50% to the driver of each vehicle since each driver had been breaking a law at the time of the accident and thus bore equal responsibility for the outcome.

It is even possible for the injured party to bear some responsibility for his or her injuries, even where the victim had been a minor when the injuries were incurred. Such was the case in Xiang v Wong, a recent decision of the BC Supreme Court in which the court was tasked with assessing responsibility for an accident between a motorist, a pedestrian and the pedestrian’s minor daughter.

Two Pedestrians Suffer Injury After Being Struck by a Motorist

In the Xiang case, the plaintiff Digiu Xiang (the “daughter”), accompanied by her father King Yun Xiang (the “father”) and little brother, endeavoured to cross the street outside of their apartment building at 7:30 pm on August 27, 2014. The daughter had just celebrated her sixth birthday, and the evening conditions were sunny and clear. While crossing the street, the father and daughter were struck by a vehicle being operated by the defendant Siu Wong (“the driver”).

Four witnesses to the accident could provide evidence to the court: the driver, the father, the daughter and an independent witness, Ms. Maxwell. Ms. Maxwell lived in the same apartment building as the father and daughter. She had shared an elevator with the family immediately preceding the accident, following which she joined at the curb of the crosswalk. When she reached the curb, Ms. Maxwell testified that she observed an approaching vehicle on the roadway and decided not to enter the crosswalk. She secured her dog to ensure that it would not enter the crosswalk. As she had remained on the sidewalk when the accident occurred, Ms. Maxwell was not involved in nor injured. Ms. Maxwell testified that the daughter had seemed excited to go to the park and had run ahead of her father while they were in the crosswalk as the father was attending to his young toddler son. She further testified that neither father nor daughter, who were not holding hands or otherwise tethered to one another in any manner, had looked both ways before entering the crosswalk.

The Court Assesses Responsibility for the Accident

As noted above, whenever a person has commenced a lawsuit seeking damages for personal injuries the plaintiff alleges to have suffered, one of the first things the court has to do is establish responsibility for the events that led to the injury. The court needs to apportion liability for the damages suffered because such an allocation will directly affect the amount of money to be paid by the responsible party. Let us take as an example a case where a plaintiff alleges that they suffered a badly broken wrist as a result of a dog bite. That plaintiff brought a lawsuit against the dog’s owner for $100,000 in damages. If the court establishes that the dog owner is 100% responsible for the events that led to the plaintiff’s injuries, and those damages are established at $100,000, then the dog owner would have to pay the plaintiff $100,000 in damages. If the court determines that the plaintiff was partly responsible for the events of the day, they may find that the plaintiff is partly liable for his own injuries. For our dog bite example, if the court determined that the plaintiff is 50% responsible for the events of the day, say, because they provoked the dog into the attack. If the court were to determine further that damages were established at $100,000, then the dog owner would only have to pay the plaintiff $50,000, representing the 50% for which the dog owner is responsible.

In the Xiang case, the court was satisfied that the evidence demonstrated that the daughter had darted into traffic, running ahead of her father and brother without checking both ways. The court was further satisfied that neither father nor daughter had adequately checked for oncoming traffic before they breached the crosswalk. The court also reviewed the driver’s testimony. It concluded that she had been driving approximately 50 km/h at the time of the accident, which was within the acceptable limit for that roadway at that time of day. While she had observed the family in the crosswalk before the accident, the driver had not anticipated the daughter darting forward. In response, she slammed on her brakes, honked the horn and veered to the left to avoid collision with any pedestrians. The evidence showed that the daughter had been very lightly “bumped” by the vehicle and had neither fallen nor struck her head as a result of the impact.

In assigning liability for the accident, the court relied heavily on an earlier decision of the BC Supreme Court, Panganiban v Sovdat. This case also involved a minor pedestrian struck by a moving vehicle in a marked crosswalk. According to the Panganiban decision, the court must first establish which party had the right of way to assess liability in such cases. In making such an assessment, the court should consider the Motor Vehicle Act, which provides guidelines for which party has the presumptive right of way in particular circumstances. After making that determination, the court must consider that drivers of motor vehicles always have a duty of care to avoid hitting pedestrians with their vehicles.

In the case, the court was satisfied that the driver had the right of way. However, just because the driver had the right of way did not mean her duty to pedestrians could be avoided. To that end, the court was also satisfied that, while she had the right of way, the driver had breached her duty of care to pedestrians because she had failed to “keep a proper lookout and take reasonable precautions in response to apparent potential hazards.” The court arrived at this conclusion after noting that the driver herself had acknowledged that she had observed the father, daughter and son in the crosswalk as she approached the crosswalk; given the “predictably unpredictable” behaviour of children, the court concluded that she should have taken extra precautions as soon as she observed the child, to avoid any potential, unexpected actions by that child.

However, the court also concluded that the father and daughter were not without fault in this case. Although she was only six years old at the time of the accident, the court held that the daughter “knew the rules of the road and knew that she should look both ways and not enter a crosswalk if a vehicle was approaching.” The father, who the court found to have been distracted by his toddler son at the time of the accident, was also found by the court to be partly responsible for the accident since he had told his daughter, without first checking for approaching vehicles, that she could enter the crosswalk. Ultimately, the court was satisfied that:

“While the daughter darted onto the crosswalk, the driver could have largely avoided the accident by decelerating upon seeing the plaintiff’s family and the playground ahead. The father’s ability to avoid the accident by holding his daughter’s hand, by taking better care to check for oncoming traffic, and by not authorizing her to cross”

Ultimately, the court determined that each father and daughter were liable for 25% of the accident, with the defendant driver responsible for 50%.

The daughter was awarded $20,000 for the damages she suffered from the accident. Due to the manner in which liability for the accident had been established, this meant that the defendant driver was responsible for paying the daughter $10,000, and the father was responsible for paying her $5,000. The remaining $5,000 was denied, as it represented the daughter’s contributory negligence.

Contact the Vancouver Personal Injury Lawyers at Meridian Law Group to Discuss Your Personal Injury Claim

You must engage excellent counsel if you are involved in a personal injury claim, either as defendant or plaintiff. The personal injury litigation lawyers at Meridian Law Group have the expertise and experience required to guide you through this complicated and intimidating process. You can rely on our capable and knowledgeable lawyers to vigorously and compassionately represent your interests while ensuring you receive every dollar you are entitled to and pay no more than is necessary.

Located in downtown Vancouver, Meridian Law Group proudly serves clients throughout British Columbia. Contact us online or by phone at (604) 687-2277 to schedule a confidential consultation.