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Posted: November 8th 2017


Every other day we read something new online chastising pedestrians for crossing the road with cell phones in hand. Cyclists too seem to bear disproportionate scorn for riding with their phones and buds. And when they are struck by cars, there is a social media sense that it was all 'their' fault. They were 100% to blame for their own injuries. They weren't being careful enough, weren't being vigilant enough and weren't being thankful enough to drivers for allowing them to use their road.

Distracted driving by motorists is a huge social problem. But it's too easy and much too simplistic to just toss pedestrians and cyclists into the same mix without looking at all the facts. Most of us would recognize that there is a difference. And most would agree it is particularly egregious when that injured pedestrian or cyclist is a child or teen.

Deep down, all drivers know that they must share the road. We know that pedestrians and cyclists are our partners in road safety. But every once in a while, motorists may need to be reminded of that reality.

Organizations like #VisionZero and it's affiliates like Vision Zero Network, remind us that all is not what it seems and urge us to resist victim shaming.

Motorists, and those who have designed our roads largely with their own motoring needs in mind, must continue to bear the lion's share of responsibility for everyone's safety and well being on our streets. It is motorists who pilot at speed five thousand pound juggernauts down the road. And it is motorists who nearly always have the last clear chance to avoid a crash with a pedestrian or cyclist.

With recent proposals to criminalize walking and texting in Ontario and other jurisdictions, it's important to first look at our existing law and ask if it truly is lacking. Old does not mean archaic or out of touch. Old, established laws aren't always bad. They are forged from decades of human experience and reflection. Our laws exist for a reason. In this case, that reason is to protect the most vulnerable on our roads.

Reverse Onus vs. Contributory Negligence: How Does That Work?

It's not an 'either or' situation. They work smoothly in tandem.

1. Reverse Onus Is King

Reverse Onus is first up on the table.

Drivers carry the burden. Our Ontario Highway Traffic Act has long recognized this reality. Our law makes it clear that motorists bear a reverse onus when they strike a pedestrian or cyclist.

Our Ontario Court of Appeal has explained that a specific act of negligence need not be proven by a injured bicyclist to show liability.

An injured bicyclist or pedestrian is only required to prove 1) the collision occurred and 2) that the collision caused the damages. The onus is firmly on the defendant driver to disprove her own negligence.

In practice, a bicyclist has always been considered a pedestrian for the application of this law.

The defendant driver always bears the bulk of liability and responsibility for the crash unless she can successfully prove that she was not negligent. This is not an easy task.

2. Contributory Negligence

Walking distracted into traffic or riding distracted in traffic isn't smart. And often it's the youngest, most inexperienced and most vulnerable amongst us who do it. For injury lawyers, this raises the issue of contributory negligence. In other words, when the injured do something that may have contributed to their loss.

That contributing action, if proved by the defendant driver, shifts a small proportionate percentage of responsibility for the crash onto the injured. But contributory negligence is only a small percentage of what goes into the negligence bucket to make a crash. The heaviest and biggest negligence bricks in that bucket usually belong to the at fault driver.

In practice, contributory negligence is really just a reduction of what an injured person gets in damages paid at the end of the day.

Contributory Negligence should never and could never exonerate a defendant driver.

The buck stops with the driver. The reverse onus lies squarely on the driver.

So What's The Road Ahead?

The temptation to blame the pedestrian or cyclist is hard to resist. As motorists, we have a deeply ingrained sense of ownership when it comes to 'our' streets. Sadly, our sense of ownership goes hand in hand with a desire to exclude others from our space. But ownership goes both ways. With privilege and entitlement, comes responsibility.

Sharing the road is hard to do. But it's not impossible. And pedestrians and cyclists most certainly do have rights. Our Ontario Highway Traffic Act has long affirmed those rights. Most millennials only know Ontario's HTA as tickets and speed limits. But it is so much more. And if allowed to do it's job, it offers a blanket of protection for pedestrians and cyclists. It's an oldie but a goody. Don't mess with a good thing.

Before we pass new criminal law in the hope of curbing a social phenom, and Ontario provincial quasi-criminal, regulatory law is toothy criminal law in every practical sense, perhaps we should carefully consider what our law already offers. Criminal law is a blunt hammer. There is nothing precise or surgical about it. Once passed, it's impact is sweeping and affects the daily lives of many. Often in ways that it's authors never truly intended. Perhaps the true, most practical answer lies within the strong reach of social media. Not with our Courts. This is a social trend that has captivated social media. Maybe social media should be the one to address it.

Call it #distractedwalking. Call it #zombiewalking. Call it #walkingstupid. But think long and hard before calling it a criminal offence.

If you are a pedestrian or cyclist and have been struck by a car, call an experienced injury lawyer to discuss your claim. Don't assume that you are to blame just because the negligent driver told you so at the scene. Don't think you are to blame just because your pals online said so. Call to find out where you stand.

Are Pedestrians & Cyclists Being Unfairly Targeted?

What Happens When Drivers Fail To Share The Road