WHEN A DRIVER HITS A PEDESTRIAN

​Nobody wants to be involved in any kind of car accident, but a collision involving a vehicle and a pedestrian can be particularly traumatic, both for an injured pedestrian and for the driver involved. The consequences can be more dire than with an accident involving two vehicles, and the avenue to compensation for the victim is somewhat different than in a vehicle-vehicle accident.

Unfortunately, both pedestrians and drivers are imperfect and even when both try their best to follow the rules of the road, accidents sometimes occur. It is important for both parties to understand their legal rights and what to do in the event of an accident involving a pedestrian and the driver of a vehicle. 

Steps to Take Immediately

If you are a pedestrian, and have been seriously injured, call 911, or cry for help if you are unable to do so due to your injuries. In other cases, you may be injured, but initially feel fine. Sometimes, despite a significant injury, the shock of the situation may cause you to think that you are “fine”, or to tell the driver that you are okay, and that he or she can move along. Do not do this. Sometimes shock or adrenaline masks a genuine injury. Get the driver’s contact and insurance information, and even if you are uncertain as to the severity of your injuries, call the police to the scene. In the event that you want to commence a lawsuit, it is important that the police have a record of what happened and that they are able to assess whether any charges should be laid against the driver. 

If you are able to, take as many photos as you can that show the conditions of the road, signage on the road, the condition of the vehicle that hit you, as well as photographs of your own injuries, if visible. If the driver attempts to leave the scene, try your best to take a photograph of the vehicle and/or its license plate, and seek assistance in doing so, if you are unable to. Ask for witnesses’ assistance, ask them if you may take their contact information, and ask if they will stay at the scene until help arrives.

If you are a driver, and have struck a pedestrian, the most important step is to tend to the safety of the injured person and prevent any further accident from occurring. If possible, move your vehicle to a safer spot, and alert oncoming traffic to divert, especially if the pedestrian has been unable to move from the street, due to injury. Do not leave the accident scene. The consequence of leaving an accident scene can be significant. For example, in R. v. Forsey, 2014 ABPC 204 (CanLII), the driver struck an individual causing serious injury, but then left the accident scene in a panic. He was incarcerated for 45 days and prohibited from driving for one year as a result of his actions.

Why You Should Speak to a Lawyer

As above, in the event of a pedestrian-vehicle collision, the risk of serious personal injury is perhaps higher than in a typical fender bender. Regardless of who is at fault for the accident, if you have been injured, it is important to discuss your options with a lawyer.

Even where the driver of the vehicle was not at fault in law for the accident, a pedestrian may still have recourse to seek compensation for medical bills and income lost during time off work. If you have been struck by a vehicle, even if the accident is not found to be the driver’s fault, you will be able to seek compensation for some of your expenses and losses through the driver’s policy of insurance. Every driver’s policy provides for Section B benefits, or “no fault” benefits, for anyone who is injured as a result of an accident involving the insured vehicle, regardless of who is at fault. Understanding how to handle a Section B benefits claim can be confusing, and it is wise to speak to a lawyer who can help you maximize the amount of compensation you receive, and help you take the steps required to collect this compensation. 

If the driver of the vehicle was at fault, a pedestrian’s options for recovery may be broader, including commencing a lawsuit against the driver to collect additional damages for pain and suffering, and to recoup any losses not covered by Section B benefits. The driver’s insurance will provide the driver with a defence and cover compensation that may be awarded to you at trial or by way of settlement. 

If you are the driver of a vehicle who has struck and injured a pedestrian, you will want to speak to a lawyer. Although your insurer may cover your defence in the event of a civil lawsuit, you may have criminal charges laid against you. 

The Steps in a Lawsuit

Before a lawsuit is commenced in court, you or your lawyer will typically deal with the driver’s insurer in order to make a claim for Section B benefits. Sometimes, the insurer will agree to pay all reasonable medical expenses and income loss benefits, up to the limits of the policy (income loss benefits will generally be less than your full income). However, in order to pay out, the insurer will require evidence of your injuries and losses. A lawyer can help you collect the information you need and help you navigate this process. If your claim is denied, your lawyer can assist you in appealing the insurer’s decision, and if not, can help you commence a lawsuit against the insurer for unfairly denied benefits, if appropriate. 

If, in the circumstances, you have losses that are not covered by accident benefits, and where there is a case that the driver of the vehicle is at least partially liable for the accident, it may be appropriate to file a Statement of Claim against the driver. The Statement of Claim is the document that outlines your case and the damages that you are seeking. Following this, the driver’s insurer will retain a lawyer to provide a defence to the claim. The parties then gather and exchange documents that are relevant to the case. This can include collision reports, photographs, and medical records. As a plaintiff, you may be subjected to a process called “examination for discovery”, where the insurer’s lawyer will be entitled to question the plaintiff in depth about your recollections of how the accident occurred, and about your injuries and losses. The plaintiff’s lawyer will also be entitled to question the driver of the vehicle, as defendant. In some cases, a lawsuit will settle prior to discovery, though often afterwards.

Following discoveries, parties will sometimes go to mediation in order to attempt to settle the case without the need for an expensive trial. Cases often settle at mediation, or sometime after mediation and before trial. Trials are extremely expensive, so in most cases, the parties will try to reach a mutually agreeable settlement without trial. Whether or not an injured party can recoup the full extent of their losses will depend on whether the driver of the vehicle is 100 percent liable, or whether there is contributory negligence on the part of the injured pedestrian. 

Note that, pursuant to the Limitations Act, a lawsuit must be commenced within two years following the accident. 

Let a Braithwaite Boyle Accident Injury Lawyer in Calgary, Red Deer, or Edmonton Help You

It is important to see a personal injury lawyer to protect your rights and ensure the best possible outcome if you have been injured in a pedestrian-vehicle collision. At Braithwaite Boyle Accident Injury Law in Calgary, we are experienced in pedestrian accidents. Contact us in Calgary, Edmonton, or Red Deer for an initial consultation at 1-800-661-4902.