The Supreme Court of Canada has held that motorists ought to be held liable for injuries when they fail to slow down and drive carefully in areas where there is a possibility there may be children, including playgrounds, schools and built up residential areas.
In the case, Anapolis County District School Board v. Marshall, a 4 years old suffered “catastrophic” injuries when struck by a school bus. The Supreme Court upheld the trial judges direction to the jury that recited the law, as it applied to children, is as follows:
In a school or playground area or in a built up residential district, a motorist should drive more slowly and carefully and keep a lookout for the possibility of children running out into the street. Here you must decide whether the circumstances were such as to put the defendant motorist on notice that he was approaching an area where children were likely to be, and therefore should exercise greater care in the operation of his motor vehicle.
In dissenting reasons for Judgement, Justice Cromwell found that the Jury charge was in fact confusing and that the heightened standard of care when driving near children needed to be stressed even more by the trial judge.
The ruling is consistent with the recent Ontario Coroners’ Review on Pedestrian Deaths that calls for reduced speed limits in areas with children. Simply going the speed limit may not be enough. The actions of a child are clearly different than adults. When drivers are entering areas where there is a possibility of children running out, they ought to slow down and keep a keen eye out. The ruling adds to a long list of authorities that require extra care must be taken when children are involved.
The Chief Coroner for Ontario has just released the Office of the Chief Coroner’s Pedestrian Death Review.
In 2010 there had been a rash of pedestrian deaths. The review was initiated after Patrick Brown of McLeish Orlando LLP and enviromental lawyer, Albert Koehl gathered a coalition of interested groups and requested a review of cycling and pedestrian deaths within the province. Last summer, the Toronto Star posted Patrick and Albert’s request and later that fall, after several meetings, the review was launched. The purpose of the review was to examine the circumstances of the deaths that occurred from January 1, 2010 to December 31, 2010 and make various recommendations. The report itself was dedicated to the 95 Ontarians who lost their lives in preventable pedestrian collisions in 2010.
The review resulted in 26 recommendations covering many areas and includes:
• Reduced speed limits in residential areas and amendments to the Highway Traffic Act
• Adopting ‘Complete Streets’ aprroach to ensure the roadways are designed and maintained for all users including pedestrians and cyclists
• Installing side guards on heavy trucks
• Creating more pedestrian crossings, longer times to cross, and developing a “walking stratedgy for Ontarians”
• Educating drivers on the scenarios that can lead to a pedestrian collision
• Increasing enforcement
A recent decision in Ontario will help injured cyclists obtain insurance benefits when they crash due to parked cars.
Marilena DiMarco was riding her bicycle in a town that had closed its main street for a festival. She was forced onto a sidewalk, which was partially blocked by a parked van. DiMarco tried to avoid the van, lost her balance and fell, hitting the van with her hand in the process. She was seeking auto insurance benefits to help her in her recovery. The auto insurer was denying entitlement because the crash was not connected to an automobile
In the decision DiMarco and Chubb Insurance Company, arbitrator Deborah Pressman accepted that the incident arose directly from the “use or operation” of an automobile as defined in the Insurance Act and Statutory Accident Benefits Schedule (SABS). This allowed Ms. Di Marco to claim benefits for her injuries.
Arbitrator Pressman stated “This automobile set in motion a chain of events directly resulting in Ms. DiMarco’s fall from the bicycle. There was no intervening act that caused Ms. DiMarco to fall. There were no other impediments around the automobile or near Ms. DiMarco.”
“Therefore, there was a direct and proximate cause between the ‘use or operation’ of the automobile and Ms. DiMarco’s injuries.”