WHEN YOU GET HIT BY A DISTRACTED DRIVER

​In Alberta, distracted driving is a breach of Alberta’s Traffic Safety Act. Even if the driver’s performance did not appear affected, distracted driving can result in a $287 fine and three demerit points. The penalties alone do not ensure that the roads are safe from distracted driving, which evidently is outpacing impaired driving in Canada as a leading cause of injury and death.

WHAT IS DISTRACTED DRIVING?

Distracted driving can take many forms. Most commonly, distracted driving is thought of as driving while using a handheld device, such as a cell phone or iPod, and it is explicitly extended to reading written material or attending to personal hygiene. However, any activity can be distracting, provided it actually distracts the driver. For example, while you are not prohibited from eating a snack on the road, and could safely drive with a granola bar, it may be hard to justify your attention to the road if you are pulled over with a bowl of soup in your hands.

BURDEN OF PROOF

If you are struck by a driver that you suspect was distracted, you may face a problem of being able to prove the distraction since most distractions take place inside a driver’s car. Finding that a driver was distracted will go a long way to ensuring that he or she is considered to have been driving negligently, and that you can recover compensation for your losses. If a driver is found to be in contravention of the Traffic Safety Act, then he or she needs to prove that any damages were not caused by his or her conduct. But how can you prove it?

DISCOVERY

The process of disclosing relevant material to other parties in litigation is complex and governed by Alberta’s Rules of Court. During the “discovery” process, parties are obligated to answer questions honestly and provide relevant documents while under oath, and if they do not, can be forced to do so by the court, or be liable for perjury or elevated costs. So, if you are involved in litigation surrounding a distracted driver, that person is under a legal obligation to answer questions and provide documents that may be relevant to distraction through the discovery process. 

In the unlikely event that your case goes to trial, your lawyer can “cross-examine” the other driver to expose any gaps in their testimony to convince the judge or jury that the other driver was distracted, or that there was no other reason justifying his or her conduct.

PHONE CALLS AND RECORDS

If you believe that the other driver was distracted by a phone call or text message, you may have relative ease in proving that the driver was distracted. These records include physical records and electronic data, and can be demanded of other parties to litigation as well as other persons through the discovery process. If a text message was sent or a call active in the moments leading up to the call, it is very strong evidence that the other driver was distracted at the time of the accident.

De La O v Chrostek, 2003 ABQB 373 (CanLII), an older case from 2003, shows the utility of phone bills to the defence to prove that a defendant was not speaking on the phone while driving at the time of the accident. The case also contains an anachronistic description by the judge of how some drivers can drive and talk on the phone without affecting their driving.

OTHER DISTRACTIONS

Holizki Estate v Alberta (Public Trustee), 2008 ABQB 716 (CanLII) contains a discussion of distractions weighing upon drivers, and how they can be inferred from the circumstances. It is a tragic case involving the deaths of several teenagers when an overcrowded car swerved into the path of a tow truck late at night. Ultimately, liability was shared between the two parties. 

From the discussion of distraction, medical experts suggested that multiple passengers, and particularly an over-packed car, indicate that a driver is more likely to have been distracted, even without evidence of what was actually happening in the car. Fatigue, which affects drivers comparably to intoxication, also suggests liability, and evidence can be found in the defendant’s conduct leading up to the car accident.

In Alberta, when someone is injured, drivers are under an obligation to remain at the scene of an accident whether another vehicle was involved or not, while police officers attending produce a report. This may be helpful to you in seeking evidence of a distraction, as officers’ notes and their own observations can be helpful in assessing distractions. Observations such as overfilled cars, unsecured pets, or distracting materials knocked loose in a crash may help you establish liability if the driver was distracted but is not forthcoming about it.

CONTACT BRAITHWAITE BOYLE FOR A PERSONAL INJURY LAWYER IN EDMONTON, CALGARY OR RED DEER

Alberta’s civil litigation process is designed to suss out information that can result in a finding of negligence and liability such as a distracted driver, and if you suspect you were hit by one, a personal injury lawyer can explain to you your rights and help you navigate this process. If you are hurt by a distracted driver, contact our firmfor a personal injury lawyer in Edmonton, Calgary, or Red Deer, Alberta. Call us today at 1-800-661-4902.