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Child-pedestrian and contributory negligence

If a child-pedestrian is struck, can the child be found partially at-fault? Should a child be held to an adult standard of reasonableness? What if the child is not yet 10 years old?

In the Ontario Supreme Court case of  Saumur v. Antoniak (2015 ONSC 2380), a boy (Dean) just shy of his 10th birthday was injured when he was struck by a car as he was walking in a crosswalk very near to his primary school. The driver was sued for negligence for striking the pedestrian, and the city of Hamilton was sued for its failure to have a crossing guard present immediately before the start of school (there was supposed to be a crossing guard present at the time of the injury).  The defendants alleged contributory negligence, which is an argument that the victim’s own negligence contributed to his/her injuries.

The trial judge rejected the contributory negligence argument. Dean was experienced with crossing busy highways like the one in question, and while he may have misjudged the speed of the oncoming vehicle or have forgotten to look both ways, the trial judge was “not satisfied that Dean acted below the standard of a reasonably prudent 10-year old of like intelligence and experience”. The following excerpt summarizes the trial judge’s finding that contributory negligence was not proven:

[77]   Based on my assessment of the witnesses and their evidence, I find that Dean walked at a normal pace to the crosswalk, speeding up a bit before he arrived. He was not necessarily walking with his head down at this point. He may have seen the Antoniak vehicle as he walked south, but if he did he was not equipped at his age to judge distance and speed. Or he may not have seen it because he forgot to look left before he crossed. He knew better, but children are notoriously forgetful when they are distracted or confused. I think that Dean was confused because he arrived at the crosswalk and there was no crossing guard to help him. He did not dart into traffic. I accept that Marc Schulze saw him standing in or near the crosswalk, which implies that his action of turning right and stepping into the roadway was interrupted for at least a perceptible moment. Dean stepped into the lane at a quick walk or jog and got a few step[s into the lane when he was struck. I am not satisfied in all this that Dean acted below the standard of a reasonably prudent 10-year old of like intelligence and experience. Contributory negligence is not proven on the preponderance of the evidence.

In today’s decision (Saumur v. Antoniak, 2016 ONCA 851), the Ontario Court of Appeal was asked by the defendants to overturn the trial judge’s conclusion – and to find that Dean’s negligence contributed to his injury.  The Court rejected this appeal, concluding that while there were other possible conclusions on the evidence, the trial judge made no reversible error. In doing so, the Court summarized the law with regard to children and negligence:

[29] The trial judge heard all of the evidence, however – including, importantly, the testimony of Dean and Tori and other witnesses who were children at the time of the accident. He was entitled to draw inferences from what he determined to be the dynamics of the events as they occurred, and to apply his experience and common sense in doing so. On this basis, and given the record, he was entitled to draw the inferences and come to the conclusions referred to above, in our view. That children lack the judgment of adults and that they are notoriously forgetful when they are distracted or confused, and therefore do not follow instructions on the basis of which “they should know better”, are concepts that are generally accepted and that have been recognized by the courts as factors distinguishing the conduct of children from that of adults in the negligence liability context: see, for example, Gonzalez (Guardian ad litem of) v. Stewart, 1995 CarswellBC 2403 (B.C.S.C.); Bourne (Guardian ad litem of) v. Anderson, 1997 CarswellBC 667 (B.C.S.C.). As this Court noted, in Nespolon v. Alford, at para. 53, the standard of care for children in situations such as this “is both an objective and subjective standard, which acknowledges the need for individualized treatment along with the need for consistency in the law”.

[30] As the paragraph cited above demonstrates, the trial judge applied the correct legal standard of care as set out in Nespolon, namely “the standard of a reasonably prudent 10-year old of like intelligence and experience”. From the application of that standard his finding that no contributory negligence should be attributed to Dean was factually driven. While another finding may have been available on the evidence, the trial judge made no reversible error of fact or mixed fact and law in arriving at his findings and the conclusions he did on the contributory negligence issue.

While the above is an Ontario decision, it is from an upper court, and relies upon British Columbia case law. It is applicable to common law jurisdictions across the country, including British Columbia.

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