The Standard of Care in Pedestrian Cases

Annapolis County District School Board v. Marshall, 2012 SCC 27

A four year old boy was injured in an automobile accident when he ran out into the road in front of a school bus. A jury found there was no negligence on the part of the defendant. The trial judge instructed the jury there could be no contributory negligence given the boy’s age but instructed them on s. 125(3) of the Nova Scotia Motor Vehicles Act, which provides a duty on pedestrians to yield the right of way to vehicles when crossing outside of a crosswalk. The judge’s charge included instructions that the standard of care owed to children on a highway is the same as to adults, but there may be circumstances that should put motorists on guard that a child could dart out onto the road. The Court of Appeal reversed the jury’s decision on the basis that the trial judge erred in referring to the right of way provisions. The defendant then appealed to the Supreme Court, which allowed the appeal.

The Supreme Court held the statutory provision was relevant to the consideration of whether the driver was negligent. Justice Deschamps held:

[7] I agree with the appellant that the Court of Appeal failed to appreciate the dual function of statutory right-of-way provisions. Not only do such provisions inform the assessment of whether a pedestrian was contributorily negligent by failing to yield a right of way, they can also help determine whether a driver breached the applicable standard of care in the circumstances. In this case, even though Johnathan’s contributory negligence had been ruled out as a matter of law, the statutory right-of-way provisions continued to inform the standard of care that Mr. Feener owed to all pedestrians. The jury needed to be told that, absent special circumstances, where the driver has the right of way, he or she can reasonably proceed on the assumption that others will follow the rules of the road and yield the right of way to drivers.

The jury’s dismissal of the action was upheld.

Many provinces have similar provisions to the Nova Scotia Act. The Supreme Court’s decision helps to inform the standard of care for motorists in “darting” cases involving children.