How cell phones could weaken personal injury claims

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For pedestrians, staring at their phones might not just result in an embarrassing bump into a tree. One personal injury lawyer thinks that if those pedestrians are struck by a vehicle, their claims might be reduced because they were practicing ‘distracted walking.’

Lucy Jackson, an associate lawyer with Thomson Rogers, explained that though pedestrians who were distracted by their phones are still subject to the “reverse onus” in Ontario, whereby the driver has to prove they were driving with due care and attention, their distraction could be treated like a cyclist not wearing their helmet, or passengers not wearing their seatbelts, resulting in a reduction to their damages.

“The big impact that distracted walking could have is in providing the at-fault driver with some evidence to minimize the amount of damages that they would be responsible to pay,” Jackson says. “Defence lawyers would use the distraction as evidence of ‘contributory negligence,’ which we see most often with respect to seatbelt use. In those cases, defence counsel for the defendant argues that the plaintiff sustained their extensive injuries because they weren't wearing a seatbelt. And therefore, the plaintiffs, say, 50 per cent responsible for the injuries. The defendant, then, is only responsible to pay for 50 per cent of the damages.”  

If the defence is going to pursue a distracted walking argument, they’ll begin at the examinations for discovery stage, asking the plaintiff if they were using their cell phone as they stepped out into the street. Jackson said they might even be able to request the plaintiff’s cell phone records to see if they were, for example, receiving or sending a text message at the time they were struck.

Jackson says the first step to preventing distracted walking from reducing payouts comes with public outreach, letting ordinary people know that stepping into the street on their cell phones might hurt their chance at legal recourse if they’re hit by a car.

The second step is where personal injury lawyers come in. Even if the plaintiff was on their phone, that doesn’t guarantee that distracted walking will play a role. Jackson’s advice is to argue that even if the plaintiff was on their cell phone that it wouldn’t have changed the nature of the accident. Personal injury lawyers need to find any and all evidence around the particulars of the case to mitigate any allegations of contributory negligence.

She cited the example of a pedestrian, eyes glued on their phone, stepping into the street as a vehicle approaches without enough time to stop as a case where contributory negligence might play a role. If a pedestrian is on their phone, but was walking through a crosswalk with the right of way and there was a red light for oncoming vehicles, Jackson thinks the driver would have a much harder time arguing that the pedestrian was contributorily negligent after being struck by the vehicle.

Though the law differs slightly from Ontario, Jackson cited three cases in B.C. heard in the past decade. Hmaied v Wilkinson (2010 BCSC 1074), Olson v Farran (2016 BCSC 1255), and Vandendorpel v Evoy (2017 BCSC 1865). In each of these cases the pedestrian plaintiffs were distracted to some degree, by talking on their phones, dropping their phones, or listening to music. In all those cases, a contributory negligence argument reduced the liability of the defendant driver.

“It just comes down to assessing the damages,” Jackson explained. “Either the driver is 100 per cent liable for all the damages or there’s going to be a decrease because of some allegation that the pedestrian is contributorily negligent, then it becomes a legal question of what percentage of fault each party bears”.