Drivesmart column: Liability: pedestrians and drivers turning left

Alexander Zacher was walking to work early on the morning of Oct. 31, 2014 in Tsawwassen.

By Tim Schewe

Alexander Zacher was walking to work early on the morning of Oct. 31, 2014 in Tsawwassen. He followed the walk signal on 12th Avenue at the intersection of 52nd Street using the marked crosswalk. When he was about two-thirds of the way across he was struck by a left turning vehicle driven by Glenn Prescesky and suffered serious injuries.

Mr. Prescesky did not see Mr. Zacher as he was focused on the far side of the intersection watching for oncoming traffic. When he did become aware, it was too late to avoid the collision.

Mr. Prescesky denied liability for the injuries. It appears from the text of the judgment that his position was based on the fact that Mr. Zacher was wearing dark clothing.

During the trial in B.C. Supreme Court, Mr. Justice Affleck cited two previous cases in his reasons for finding Mr. Prescesky to be solely at fault for the collision.

The first, Miksh v Hambleton, holds that once a pedestrian has safely entered the crosswalk, unless they do something negligent such as running into the path of a vehicle, they may assume that drivers will yield the right of way and will not be liable if struck.

The second, Achilleos v Nix and Vancouver Taxi Ltd., finds that “Pedestrians in crosswalks who are proceeding when the ‘walk’ pedestrian sign is illuminated are free to wear whatever colour clothes they feel are appropriate.”

On page 83 in Chapter 6 of Learn to Drive Smart drivers are cautioned that pedestrians are often hard to see, especially at night. Don’t enter a crosswalk without checking to see that it’s empty, even when the light is green.

Clearly, the duty of care lies most heavily on the driver.

With Vision Zero in mind, should the function of our traffic signals be revised? If turns to the left and right were not permitted at times when pedestrians are in the adjacent crosswalks this collision would not have occurred. The pedestrian scramble is one example of this type of solution.

Leading pedestrian intervals would not have been much help here. This scheme allows the pedestrian a three to seven second head start to make them more visible to turning drivers. A potential crash reduction of up to 60 per cent is possible when traffic signals are set this way.

Even though Mr. Zacher did everything required by law, he’s still the biggest loser in this incident. While he was not required to, there are still precautions that he might have chosen to take in order to protect himself. When you are a vulnerable road user, doing more than you have to could pay off.

Tim Schewe is a retired constable with many years of traffic law enforcement. To comment or learn more, please visit DriveSmartBC.ca

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