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Distracted walking vs. reverse onus provisions of Highway Traffic Act (Pedestrian Collision Cases Ontario)

An Ontario MPP’s private member’s bill proposed that pedestrians not paying attention to where or how they are walking, could be fined up to $50 for distracted walking.

It’s called the “Phones Down, Heads Up Act” and was tabled by Toronto MPP Yves Baker of Etobicoke Centre.

Baker’s bill would ban people from looking at their phones or electronic devices when crossing roads, with an initial $50 fine for the first offence, $75 for the second and up to $125 for the third. Exceptions would include pedestrians making an emergency call or if they began speaking on the phone before stepping into the crosswalk (this would be difficult to prove).

In Ontario, the OPP attributed 65 deaths in 2016 to distracted driving, which is more than impaired driving, speeding or not wearing a seat belt. While this is not distracted walking, it’s certainly along the same lines. In 2016, 42 pedestrians were killed on Toronto’s streets, the most since 2002.

Here are Goldfinger Injury Lawyers, we applaud the “Phones Down, Heads Up Act” as too often, we see people taking those so called “zombie walks” without paying attention to where they are going, or what they’re doing.

But, we have a lot of questions about the new Act, which are explored in greater detail below.

Please keep in mind that distracted walking does not only involve accidents involving pedestrians, and cars, bikes or other motorized vehicles.

People walk in to pot holes or cracks or lose their footing on account of not paying attention to where they are walking .

People walk in to lamp posts, doors, walls, guard rails, other pedestrians, parked cars and fall down stairs because they are not paying attention to where they are walking.

People slip on ice or other slick surfaces because they aren’t paying attention to where they’re walking.

You have all seen the YouTube clips before of ridiculous distracted walking incidents. Our personal injury lawyers field some of those calls.

We have discussed the dangers of distracted walking before. Our lawyers have seen some terrible instances of pedestrians being in large part, the author of their own misfortunes by failing to see hazards on account of being distracted on their phones or mobile devices.

The reality is that bikes and cars are made of metal, steel and hard plastics which travel at high velocity and can crush flesh and bone.

The driver of the car can be in the wrong 100%, but that will never give the pedestrian his/her life back, or remedy their catastrophic injuries.

Money is the only way the Courts can compensate a seriously injured pedestrian for their pain and suffering. There is no death penalty in Canada which is implemented against the at fault driver. The Court cannot order that the at fault driver be the injured accident victim’s personal 24/7 attendant until that person gets better.

In fact, damages for pain and suffering are capped at around $370,000; and are subject in Ontario to a $36,920 deductible which goes up every year with inflation. That means that even if the driver of a car or bike were drunk, ran a stop sign, and texting at the same time and violently struck a pedestrian rending them seriously injured, the at fault Defendant driver is still protected by a $36,920 deductible which gets reduced right off the bat from the Plaintiff’s claim, and returned to the insurer.

But enough about the deductible. In this installment of the Toronto Injury Lawyer Blog, we wished to focus on “Phones Down, Heads Up Act.

Our concern with this Act, is how it will play out with the reverse onus provisions in the Highway Traffic Act for pedestrian knockdown cases with vehicles.

Section 193(1) of the Highway Traffic Act creates a “reverse onus” situation whereby the motorist is essentially guilty until proven innocent if they hit a pedestrian with their car. It will be up to the driver of the car to prove that they weren’t at fault because this section of the Act already puts them in the wrong for having hit the pedestrian in the first place.Goldfinger-logo-icon-300x300

Section 193(1) of the Highway Traffic Act states:

Onus of disproving negligence

193 (1) When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle. 

The question which personal injury lawyers in Ontario, is how will the Phones Down, Heads Up Act be read in conjunction with the reverse onus provisions contained in section 193(1) of the Highway Traffic Act? Will the onus still be on the driver who strikes a pedestrian to disprove negligence? Or will the onus now shift to a pedestrian who had a phone in hand to show why the motorist did wrong? Will the reading of these laws conflict? Is it fair to pedestrians to lose the power of the reverse onus simply if they were charged, but not convicted under the Phones Down, Heads Up Act? Will simply holding a phone of mobile device constitute as distracted walking; and if so, does the pedestrian lose their reverse onus power under the Highway Traffic Act?

These questions are significant to personal injury claims as they go straight to the question of fault/liability. The ability for the parties to resolve issues before trial, such as liability, will help speed the case along and simply a prospective case/trial. The more contentious issues at play, the more complex and lengthy the personal injury trial. An injured Plaintiff pedestrian has the upper hand in pedestrian claims, because of the reverse onus provisions established by the Highway Traffic Act. Should the Phones Down, Heads Up Act distort those provisions, it may be a tougher battle for the injured Plaintiff, in what’s already a skewed system designed in favour of insurers to minimize their potential claim exposure.

We applaud MPP Yves Baker for bringing light to hazard. Our lawyers remain interested to see how this proposal plays out in conjunction to the Highway Traffic Act. Ever consider simply amending the Highway Traffic Act to include a section on pedestrian safety and pedestrian hazards? Likely not as big as a headline grabber as the Phones Down, Heads Up Act.

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