CASE LAW - Hmaied v Wilkinson

BC Courts Coat of ArmsFifteen year old Wiael Hmaied was crossing diagonally across Clarke Road in Port Moody near the Barnett Highway. He was walking against the red light displayed at the nearby intersection, not using a crosswalk, when he dropped his cell phone. He stopped and turned without looking to pick up the cell phone and was struck by a truck driven by Brian Wilkinson.

Mr. Wilkinson had approached at a speed slightly over the speed limit and did not take any action when Hmaied stepped into the roadway. A driver following behind Wilkinson anticipated possible problems and began to slow. He watched as Wilkinson finally did act and brake heavily just before striking Hmaied.

At issue is the liability for the collision and the judgment contains a discussion of the duties of both pedestrians and drivers as they interact with each other in traffic.


Read the Reasons for Judgment - Hmaied v Wilkinson


This is an important judgment.

After reading the initial determination of how this pedestrian/vehicle collision occurred, I figured that a 50/50 judgment in terms of fault was probable, so in the academic sense was delighted to find that this was the conclusion.

The pedestrian acted as though he had total right of way, without responsibility for the consequences of his actions; but the driver acted in a very similar manner, only attempting to prevent the collision at the last moment, when it was already too late.

It's well worth reading through the whole transcript.  At the end of the day, damages to the pedestrian were assessed at $73k, but because he was as much at fault as the driver, they were reduced to half of that.  At risk of sounding cynical, I would guess that he doesn't jaywalk any more.  As for the driver?  Well he, or his estate, are the poorer for the same amount, because he didn't make the effort to prevent the collision soon enough.

What's really absurd is that they both had sufficient visibility of each other and the potential for collision to easily ensure that it wouldn't ever happen in the first place.  But when they ran out of space between them, there was no time left to react in a way that could prevent their colliding with each other.

The one thing that I would wish to argue with the judge is her assertion that the driver should have changed lanes to avoid the collision.  This seems to presume that he had the time to ensure there was no vehicle in the adjacent lane, yet only seconds elapsed from when the driver (and the guy following him down that hill) were able to see the pedestrian to when they hit each other.  I only mention this because if the driver did change lanes without checking (as required by law) that it could be done safely, then he could have triggered a much more serious crash by shoving the car beside him into the oncoming lanes.

Oh, and she's also incorrect about right-of-way.  Nobody ever has that - under law.  But there are certainly many times when they don't.

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