If a driver hits a pedestrian that was jaywalking, or crossing the road without a crosswalk, the general assumption may be that the pedestrian is entirely at fault. However, that is not necessarily true.

In reality, fault in these types of accidents is not determined automatically. Fault depends on the specific circumstances of what happened leading up to the accident. Oftentimes, both the driver and the pedestrian may share responsibility for the collision.

Nova Scotia and the other Atlantic provinces each have their own traffic laws and legal standards that help determine fault in collisions involving jaywalkers. Courts must look at how both the driver and the pedestrian behaved, and whether either of them failed to take proper care or follow the rules of the road.

This article seeks to help you understand your legal rights and responsibilities if you are involved in a pedestrian-vehicle collision.

To do so, we’ll explain how the law in Nova Scotia and Atlantic Canada more broadly handles these kinds of pedestrian-vehicle collisions. We’ll look at what jaywalking actually means, what the rules are for both pedestrians and drivers, and how courts decide who is responsible when someone gets hurt.

What is Jaywalking?

Though it is a term that many of us are familiar with and use in daily life, “jaywalking” is typically not an official or formal term used in legal writing. In fact, in most Canadian provinces, including those in Atlantic Canada, the term does not appear in provincial statutes. However, this does not mean that the act of jaywalking itself is unregulated.

Instead, jaywalking is discouraged through regulations for pedestrian conduct more broadly, found in provincial motor vehicle acts and municipal bylaws. Together, these outline where and how pedestrians must cross roadways.

There is No Statutory Definition of “Jaywalking”

In Nova Scotia, the Motor Vehicle Act does not use the word “jaywalking”. Instead, there are sections that include clear rules regarding pedestrian conduct, such as those summarized below:

  • Section 125(1) → When pedestrian crossings are not controlled by traffic signals, a pedestrian has the right of way while within the crosswalk and when stopped facing a crosswalk.
  • Section 125(3) → When a vehicle is so close to the crosswalk that it would be “impractical” for it to stop, a pedestrian must not walk or run into the vehicle’s path in an attempt to cross the roadway.
  • Section 125(4) → When a crosswalk has a pedestrian-activated signal, the pedestrian may not attempt to cross the roadway until the signal has been activated.
  • Section 125(5) → When crossing a roadway anywhere other than a crosswalk, a pedestrian must yield the right of way to any vehicles on the roadway.

Similar language can be found in the statutes for other Atlantic Canada provinces:

It is important to note the actual definition of a “crosswalk” in the Nova Scotia Motor Vehicle Act. It is defined as being “…that portion of a roadway ordinarily included within the prolongation or connection of curb lines and property lines at intersections…”  New Brunswick’s definition states that “cross walk” “…means that part of a roadway at an intersection lying between imaginary lines connecting the lateral lines of the sidewalks on opposite sides of the highway.  So even if there are no lines or markings on the pavement indicating a crosswalk, at any intersection there are crosswalks that a pedestrian has a right of way upon. Similar definitions are found in other provincial statutes. 

Some municipalities enact additional rules in the form of bylaws that address pedestrian conduct in more detail. If you’ve been in a pedestrian-vehicle collision, ensure that you check if there are any applicable bylaws that you need to consult.

Ultimately, none of these statutes criminalize “jaywalking”, but they impose conditions on where and how pedestrians may lawfully cross the road, as well as whether the pedestrian or the driver has the right of way in specific circumstances.

What is Yielding the Right of Way?

Mentioned in the above section, understanding this legal concept is key in situations involving vehicles hitting pedestrians. “Yielding the right of way” refers to certain instances where one person, whether a pedestrian or a vehicle, is expected to let the other go first. Specific circumstances are identified above.

If someone fails to yield the right of way when they were legally supposed to, that can be used as evidence that they were at fault, or at least partly responsible for the accident.

Common Jaywalking Scenarios:

  • Crossing mid-block between intersections, especially on busy urban streets;
  • Ignoring pedestrian signals at intersections;
  • Crossing diagonally through an intersection instead of using crosswalks; and
  • Walking across a highway or other restricted-access roads.

What are My Responsibilities as a Pedestrian?

Pedestrians do not have the freedom to walk wherever or whenever they want. Just like drivers, pedestrians must follow the rules of the road. These rules are not suggestions, they are legal duties. Though the wording may vary from one province to another, the general expectation is that:

  • Pedestrians must use crosswalks when available and in accordance with applicable signals;
  • If no crosswalks are nearby, pedestrians must yield to traffic and only cross when it is clearly safe to do so; and
  • Pedestrians must exercise due care for their own safety and not step into traffic without checking or in a way that leaves drivers without enough time to react.

It is possible that failure to follow these provisions may amount to a finding of contributory negligence, where the pedestrian is determined to be partly responsible for their own injuries. This can result in a finding of shared fault, leading to a reduction of any damages awarded in a personal injury lawsuit.

What are My Responsibilities as a Driver?

Drivers are held to a high standard of care when operating a vehicle, especially when it comes to staying vigilant for pedestrians. Even if a pedestrian is jaywalking or otherwise crossing improperly, drivers still have a legal responsibility to avoid hitting them if reasonably possible.

Under the law, drivers owe a duty of care to all other road users, including pedestrians. Generally, drivers must:

  • Drive with caution, especially around pedestrians or areas where they are likely to be present, including;
    • Marked crosswalks and school zones,
    • Residential streets or downtown areas,
    • Intersections, even without signals,
    • Areas with heavy foot traffic or parked cars that may block visibility.
  • Pay attention to their surroundings at all times; and
  • Adjust driving based on the road and traffic conditions.

The legal expectation is often that the driver acted as a reasonably careful person would in the same circumstances. Failure to do so can be considered negligence.

Upholding these rules and responsibilities is extremely important for a variety of reasons, but especially because while a driver may come away from the accident with minimal or no injuries, the involved pedestrian could face serious injuries with detrimental consequences or even death.

How is Fault Determined for Pedestrian-Vehicle Collisions?

In these scenarios, the issue of who is legally at fault is rarely straightforward. In a process known as assessing negligence, the Court will closely look at the facts of the case to decide whether the driver, the pedestrian, or both failed to meet their legal responsibilities.

In Nova Scotia, pedestrian-vehicle accidents start from the presumption that the driver was at fault for the accident. It is then the responsibility of the driver to prove that they were not solely responsible for the collision. If the Court finds that a pedestrian made mistakes that contributed to the accident, fault is divided between the two parties depending on their respective actions.

For example:

  • If a driver was speeding and a pedestrian crossed diagonally without checking for oncoming traffic, a judge may find that each party was 50% at-fault.
  • If a pedestrian suddenly and quickly crossed without using the crosswalk signal, and left the driver with minimal time to react, a judge may find the pedestrian 100% at-fault. 

As mentioned earlier, a finding of contributory negligence can impact the compensation that an injured pedestrian receives, depending on their share of responsibility. If damages were valued at $100,000 and the pedestrian was 25% at-fault, they would receive $75,000 instead of the full amount.

What Do Courts Consider When Assigning Fault?

  • Where the pedestrian was crossing → Was it at a crosswalk, nearby a crosswalk, an intersection, or somewhere else?
  • Lighting and visibility → Was it daytime or nighttime? Did the pedestrian have on dark colours or reflective clothing? Were there streetlights? Were there obstacles in the way that made it difficult to see the pedestrian?
  • Weather conditions → Was it clear, raining, snowing, or foggy?
  • Driver behaviour → Were they speeding, distracted, impaired, or ignoring traffic signals?
  • Pedestrian behaviour → Did they look before crossing? Were they rushing or running? Were they distracted by their phone or by their headphones? Did they cross suddenly?

More broadly, the courts want to know not just who broke what rules, but also who had the best chance to prevent the accident from occurring and whether the actions taken were sufficient. For example:

  • Jaywalking by crossing the street without having the right of way may not be considered as blameworthy as a driver who had the right of way but was speeding in a residential area.
  • The law also recognizes that children may not exercise the same judgement as adults. Cases that involve young pedestrians may find the courts more likely to place greater responsibility on drivers to anticipate potentially erratic behaviour.

In many pedestrian-vehicle collisions, evidence also plays a crucial role in the determination of fault. This may include:

  • Witness statements;
  • Traffic or security camera footage;
  • Police reports of the accident;
  • Expert opinions, such as specialists in accident reconstruction; or
  • Photographs of the scene, particularly when there are clear signs of tire marks, obstructions, or accurate lighting conditions

These conditions and types of evidence are also incredibly important to insurance companies when they are reviewing a file to decide who should be compensated and how much they are entitled to.

Can I Make an Insurance Claim as a Pedestrian Hit by a Vehicle?

If you have been hit by a vehicle while jaywalking or conversely are the driver involved in that kind of accident, you likely have an abundance of questions about who pays for what and how insurance works under these circumstances.

While every case is different, there are some common principles in Nova Scotia and the other Atlantic provinces that can help guide you through what happens next. Many pedestrian injury claims settle out of court, where insurance adjusters negotiate compensation with you or your counsel on your behalf. As with damages ordered from the courts, determinations of fault impact how much compensation is received from insurance companies–if any at all. The reduction of compensation based on fault follows the same formula used in courts.

Regardless of whether the pedestrian was jaywalking at the time of the accident, it is typically the driver’s insurance company that will reach out first. This is because all drivers in Canada are required to have third-party liability insurance in order to legally operate their vehicle on a roadway, while pedestrians are not required to have this type of insurance and likely do not unless they have a vehicle.

In Nova Scotia, all insurance policies are required to include Section B Accident Benefits that cover things like medical expenses, rehabilitation costs, lost income, or funeral costs. This type of coverage is available regardless of who was found to be at fault, meaning that even a pedestrian that was jaywalking can be entitled to these accident benefits.

It is important to note that these benefits are typically limited and only cover short-term costs. For larger claims dealing with future income loss, long-term care, or pain and suffering caused by injuries stemming from the accident, fault is a central issue that may be best handled with the assistance of an experienced personal injury lawyer.

Simplifying Pedestrian Insurance Compensation:

  • Insured driver, insured OR uninsured pedestrian → Damages come from the driver’s insurance policy; no-fault accident benefits are paid by the insured driver’s insurance company as the pedestrian is considered “an insured person” under the insured drivers policy provisions. 
  • Uninsured or unknown driver, insured pedestrian → Damages come from the pedestrian’s own insurance policy under Section D; no-fault accident benefits also go through the pedestrian’s policy.
  • Uninsured or unknown driver, uninsured pedestrian → Damages come from the Facility Association; no-fault benefits also go through the Facility Association but are limited to lump sums.

Filing these kinds of insurance claims are complex and can be time-consuming, especially if you cannot rely on the driver’s insurance policy. If you are dealing with an uninsured or unidentified driver, it is best to consult a lawyer early on in the process to ensure that you receive a fair amount of compensation.

Are Jaywalkers Responsible for the Driver’s Damages in an Accident?

There may be instances where a pedestrian-vehicle collision injured the driver or damaged their vehicle. The driver may be eligible for compensation, but it depends entirely on the specifics of their own insurance coverage and whether the pedestrian was clearly at-fault.

In rare situations where a pedestrian’s negligence was the sole cause of the accident (such as if they ran out in front of a car and caused it to crash), the driver may sue the pedestrian for any resulting damages. This is a tricky area, as many pedestrians do not have insurance that would cover the costs of these damages, severely limiting recovery opportunities.

How a Lawyer Can Help if You’re Accused of Contributory Negligence

If a driver or their insurance company is claiming that you as a pedestrian were partly or wholly at-fault for the accident because you were jaywalking, it is essential that you contact an experienced personal injury lawyer. 

Obtaining legal counsel is a definite asset that can help in several key ways:

  • Fairly assess the issue of fault → Lawyers are trained professionals that understand how courts interpret contributory negligence and can help determine whether the level of fault being pushed on you is supported by law as well as fact.
  • Gathering evidence → Your lawyer can take on the responsibility of procuring relevant evidence by collecting security footage, speaking to witnesses, and consulting experts. These tasks may be difficult or impossible to complete alone but can help shift the assessment of fault in your favour.
  • Negotiating with insurers → Insurance companies may try to minimize payouts by exaggerating your level of fault as a pedestrian. Dealing with hard to quantify numbers can make these tactics difficult to spot as a layperson. Personal injury lawyers are familiar with these strategies and can push-back and advocate for a more balanced and evidence-based settlement.
  • Preventing important deadlines from being missed → In Nova Scotia and all other Atlantic provinces, there are strict limitation periods that set out how long you have to file a lawsuit. Though it can vary depending on the circumstances, the deadline is generally two years from the date of the accident. Once this date has passed, you may lose your right to sue, regardless of the strength of your case.
  • Ensuring you are fully compensated → Just because you may have made a mistake does not mean that you should be pressured into a low settlement that fails to cover the costs of your injuries. Legal advice can make a significant difference in how much compensation you may receive.

Even if you were jaywalking, the driver may still have been more in the wrong. A lawyer’s job is to make sure that the entire story is told, your perspective is heard, and your legal rights are protected.

Contact the Team at NOVA Injury Law Today, We’re Here to Help!

It is important to keep in mind that laws can vary by province, individual circumstances, and the severity of the accident. If you’ve been involved in an accident or have any questions about your legal rights, it is wise to speak to a qualified lawyer. 

The team of lawyers at NOVA Injury Law are well equipped to guide you through this stressful time. To learn more or to schedule a free consultation regarding an insurance claim, contact NOVA Injury Law at (782) 824-5197 or info@novainjurylaw.com.