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Achieving-Justice

Would you blame the child?

A child whose own carelessness contributes to their injury can be held accountable.

This is the third in a series of columns reviewing legal duties when a child, darting out from behind a parked car on a residential street, is struck by a car. The series is based on the legal decision of Bourne (Guardian ad litem of) v. Anderson,  1997 CarswellBC 667.

My first column, just before Halloween, reviewed the duties of a motorist who becomes aware of children present on a residential street.

Their duty is to take special precautions such as immediately slowing down and keeping a sharp lookout so that if a yet unseen child darts out, a collision can be avoided. 

I then reviewed the duties of parents. They are not held to the standard of producing perfectly obedient little soldiers, nor to keep their children on a leash.

 But there is a “parental duty of care” to reasonably teach our children about road safety and to monitor their behaviour to ensure those lessons are sticking. If they fail in that duty, a parent can be held partly accountable.

That leaves the child who darted out.

An adult who darts out in traffic will have no entitlement to compensation unless the motorist hitting them is also negligent, and in that case there is an assessment of their respective percentages of fault.

The injured pedestrian’s compensation is limited to the percentage fault of the motorist.

Children are handled differently. Duties of care are always about what’s reasonable. It would not be reasonable to hold a six- or seven-year-old child to the same standard of care as that of an adult.

The court first considers the standard of care expected of a child of similar age, intelligence and experience. And then compares the victim’s behaviour against that standard.

The judge in the Bourne case noted that the question is not an easy one. He explained the puzzle as follows: 

 “What causes me much concern is the well-known fact that generally speaking young children are forgetful and easily distracted, and often the need to take care for their own safety, and safety lessons drilled into them, fail them or are forgotten when crossing or attempting to cross a street.

“And this is particularly so if they are involved in some sort of a game with an older child or children; for example, a child chasing a ball, or another child, onto a street. Given the propensities of young children, I find it difficult to postulate the care to be expected from the reasonable child in such circumstances.”

The judge found that seven year old had been capable in law of being contributorily negligent because of his age and road safety training.

But he was unable to say that the child’s conduct in the circumstances of getting caught up in a game of hide and seek with his nine-year-old friend who had safely crossed the street immediately ahead of him was any different from what might have been expected.

The end result was that the child was entitled to full, fair compensation for his injuries and losses.

Please very carefully guard against getting to the point of your liability insurance company pointing fingers at a child or their parents to avoid having to fully compensate a child for their injuries and losses.

How? 

Jack up your level of care and awareness behind the wheel and keep in mind how forgetful and easily distracted children are.





Is the hurt child to blame?

Is there parental accountability if a child darts out on the street and is injured?

The context is the court decision of Bourne (Guardian ad litem of) v. Anderson, 1997 CarswellBC 667. I referred to that decision last week when cautioning drivers to slow down and keep a sharp lookout anywhere children might be trick-or-treating.

The motorist in that case was driving on a residential street. Two boys were hiding from and sneaking up on a sister. One of the boys had just darted across the street in front of the motorist, leaving the other one crouched, out of view of the motorist.

The court made a common sense finding:

Once a driver becomes aware of the presence of children on a residential street, the driver must take special precautions for the safety of other children who might come onto the street as well. 

Special precautions would include immediately reducing speed and keeping a sharp lookout.

Had those special precautions been taken, the motorist would have been able to avoid hitting the next child who darted out after the first. 

She was, therefore, found liable for the injuries to the child.

Her clever insurance company, though, sought to pass the blame on to the injured child’s parents. 

They said the child’s parents should have done a better job of instructing and training their son about street safety. 

In legal terms, they were saying that they breached their “parental duty of care,” a duty that us parents owe to our children as well as to others who might be harmed by our children. 

We are not held to the unreasonable standard of creating perfectly obedient little soldiers. Nor are we required to keep our children on leashes to eliminate any chance that they might hurt themselves or others. 

But we are, indeed, held to a reasonable standard of care when it comes to supervising and controlling the activities of our children.

The parents testified that they had instructed their children to cross the street only at the corner, to look both ways and never to go between parked cars.

The mother believed that her son, aged seven years and four months at the time of the collision, understood the rules, which she never saw him disobey. 

The father had specifically explained to his son the danger of going onto the street from between parked cars and of playing around parked cars, because the drivers of approaching vehicles would not be able to see him.  

It seemed to the father that his son understood.

The judge concluded that there was no evidence of negligence on the part of either parent in instructing and training their son about street safety and the claims against the parents were dismissed.

But there was another way the defending insurance company tried to avoid the accountability of the negligent motorist. They also pointed their finger at the injured child. 

His parents had taught him about street safety. He was told to cross at the intersection, but instead crossed between parked cars. He also failed to follow the rule about looking before crossing the street. 

He clearly failed to look out for his own safety and the defending insurance company sought to reduce his entitlement to compensation on the basis of a legal concept of “contributory negligence.” 

I will address that issue, of when children will be held accountable for looking after their own safety, in my next column.



Don't run over the goblins

Children swarming the streets and alcohol enriched parties make Halloween a perfect storm for disaster.

Alcohol doesn’t usually come into the mix until after trick-or-treaters are safely back in their homes. Except for the moms and dads with laced coffees, keeping warm while following the little ones around.

During the witching hour (or two or three) children are darting from house to house. Every shred of their attention goes to filling candy bags. Street safety consciousness goes way down.

When drivers encounter a street congested with throngs of children, we automatically slow to a crawl. Nobody wants to hurt a child. And push the speed envelop even a titch and you’ll face the wrath of the mama and papa bears among them.

But please don’t wait until you see throngs of children before you slow down. We must jack up our level of vigilance and lower our speed everywhere children might be trick-or-treating.

The court decision in Bourne (Guardian ad litem of) v. Anderson, 1997 CarswellBC 667 is a helpful legal precedent for the duty of drivers when there might be children on the road.

The motorist, Ms. Anderson, had been driving through a residential area in Vancouver on a Saturday afternoon. She was driving at a reduced speed of approximately 40 km/h

A seven-year-old boy and his nine-year-old friend were sneaking up on the seven-year-old’s sister. The seven year old darted out from between parked cars, directly in the path of Ms. Anderson, and was struck.

The court accepted that Ms. Anderson would have had no opportunity to apply the brakes of her vehicle before impact: 

“I am satisfied that the defendant vehicle was in the process of passing the parked red vehicle at a speed of approximately 40 kilometres per hour, when Geordie suddenly dashed out in front of that vehicle in the crouched position. In these circumstances it is clear that the defendant driver would not have had an opportunity to apply the brakes of her vehicle before impact occurred.”

But Ms. Anderson was still found at fault.

Because while Geordie was hidden, his nine-year-old friend and his sister were both in plain view. And the friend had just run across the street from the same vehicle Geordie later dashed out from.

The driver was thereby warned of the possibility of another child darting across the street.

The court provided the following general statement about motorist safety: 

“In my opinion, once the presence of a child or children on a road is known, or should have been known, to the driver of a vehicle proceeding through a residential area where children live, that driver must take special precautions for the safety of the child or children seen, and any other child or children yet unseen whose possible appearance or entrance onto the road is reasonably foreseeable.

“The precautions include keeping a sharp look out, perhaps sounding the horn, but more importantly, immediately reducing the speed of the vehicle so as to be able to take evasive actions if required.”

On Halloween, the possibility that a child might dart out onto the road is reasonably foreseeable anywhere children might be trick-or-treating. Not just on the streets where we notice throngs of children.

We must keep a sharp lookout and reduce our speed so that if a young ghoul pops out from behind a parked car we can take evasive actions.

Some might wonder where parental responsibilities might be in a tragedy like this. Or whether a child might share some of the blame. I will address those issues in my next column.





Sign my petition

Awareness of a danger empowers you to make choices to eliminate, or at least significantly reduce, risk of harm.

Consider an obscured cliff edge on a hiking trail.

If a warning sign makes you aware of it, you can choose to stay away and completely eliminate the risk of falling to your death. Or you can make the informed choice to get close to enhance your view.

Aware of the danger, you can choose to reduce risk by taking extra care. You might hold onto a tree or get down on your belly and inch yourself closer.

The same goes for driving dangers.

Most driving dangers, such as alcohol impairment, are obvious.

Some eliminate the risk they pose to themselves and others by choosing to have zero alcohol in their system when behind the wheel.

Many choose to reduce, rather than eliminate, the risk by keeping within the legal limits. Those making that choice hopefully choose also to compensate for their mild impairment by paying an even higher level of attention to the road.

Another obvious danger is taking your eyes off the road.

A road hazard could occur while your eyes are elsewhere. By the time your eyes get back on the road, it might be too late to react.

When we choose to look away, whether it’s to adjust the air conditioning, change radio stations, reach for your coffee mug or check on our kids in the back seat through the rear-view mirror, we compensate for that risk.

We wait until we’ve cleared the intersection or for any other complex road situations to pass. We leave a bit of extra space between our vehicle and the one ahead.

We keep the “eyes off the road” time as short as possible.

What a disaster it would be if we were clueless of the dangers of driving impaired or having our eyes off the road, not having the informed choice to eliminate or reduce the risks associated with them.

We are living that disaster when it comes to the danger of “brain off the road.”

Most drivers are unaware of the danger of “inattention blindness,” a term to describe a phenomenon that occurs when the brain is engaged in something else besides driving and your brain fails to process some of the available visual information.

As I shared in my last two columns, scientific studies have concluded that when it comes to engaging in a telephone discussion you see, but fail to process, up to 50 % of what you are looking at out of your windshield.

And that it makes no difference whether you are talking hands free (with both hands on the steering wheel), or you have one hand up to the side of your head.

We don’t realize it’s occurring. How could we? 

We don’t get a report at the end of our journey pointing out all the things that came within our field of vision that our brain didn’t have the available resources to process.

Unlike with alcohol, we don’t feel anything of impairment when thinking about the office, chatting away with a passenger, engaging in a cell phone discussion, or even doing the mental gymnastics of voice to text.

From time to time we will miss a turn, get to our destination without having any recollection of the trip, and there will be a close call here and there.

But with our lack of awareness of the dangers of “brain off the road,” we think of those as the inevitable by-products of driving.

They are not inevitable.

They are as preventable as falling off a cliff, if only we had awareness of the danger and took steps to eliminate or greatly reduce the risk.

How would driving behaviour change with that awareness?

Some would choose to eliminate the danger.

They would leave their phones completely alone, not chat with their passengers, not engage their brains in an interesting podcast or news story, and would come up with tools to detect if their minds started to wander, so they could refocus their attention.

Those choosing to allow their brains to be engaged in other things would take steps to reduce the risk.

They would keep those brain engagements to a minimum. And when engaging their brains elsewhere than the road, they would compensate by continually redirecting as much of their conscious brain energy to the road as possible, allowing only a minimum of their attention to be drawn away.

How do we raise awareness of the danger of “brain off the road” so that drivers can make informed choices to eliminate or at least reduce their levels of “inattention blindness?"

There needs to be a shift in road safety policy. Our focus must shift from “hands on the steering wheel” and “eyes on the road” to “brain on the road."

You can help. Become more informed by reading this paper: Understanding the Distracted Brain. And share what you learn with others.

And electronically sign my petition to change our laws to prohibit all cell phone use while driving, because banning only hand held use reinforces driver cluelessness that “brain off the road” is the real problem: Petition



More Achieving Justice articles

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About the Author

Paul Hergott began practicing law in 1995, in a general litigation practice. Of the various areas of litigation, he became most drawn to, and passionate about, pursuing fair compensation for injured victims. This gradually became his exclusive area of practice.

In 2007, Paul opened Hergott Law, a boutique personal injury law firm in the Central Interior, serving personal injury clients from all over British Columbia. Paul’s practice is restricted to acting only for the injured victim, never for ICBC or for other insurance companies.

Paul became a weekly newspaper columnist in January of 2007, when his first column entitled “It’s not about screwing the Insurance Company” was published. 

Please feel free to email or call Paul (1.855.437.4688) with legal issues you might like him to write about in his column, or to offer your feedback about something he has written.

Email:   [email protected]
Firm website:  www.hlaw.ca
Achieving Justice Legal Blog:  http://www.hlaw.ca/category/all-columns/
One Crash is Too Many Road Safety Campaign: www.onecrashistoomany.com
Google Plus:  https://plus.google.com/+HlawCanada/posts
Facebook:  www.facebook.com/personalinjurylawfirm
Twitter:   twitter.com/Hergott_Law



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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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