In what circumstances will a driver be liable for failing to change his speed or sound his or his lights or horn as he approaches a pedestrian?

In Crites v. Branston, [1973] O.J. No. 177, a 17 year old high school student who had been attending a house party and drinking was walking quickly or jogging along a street without a sidewalk at approximately 2:00 a.m. He was observed by the defendant driver travelling in the same direction from a distance of several hundred feet. The defendant was driving at approximately 30 miles per hour and never changed his speed other than applying his brakes immediately before the collision and he was driving with his lights on low beam illuminating the road for 30 to 40 feet in front of him. The court rejected the defendant's testimony that the pedestrian darted into the side of his car as he passed even with him and determined that the pedestrian started to cross the roadway when the motor vehicle was not less than 75 feet and more likely as far as 90 feet from him. The court apportioned the negligence as 80% against the infant plaintiff and 20% against the defendant holding that the presence of the pedestrian walking quickly or jogging on the shoulder of the road at 2:00 in the morning in an area where there was relatively no traffic and no pedestrians should have alerted the defendant. It was further held that the defendant should have been aware that his headlights did not create a reflection beyond 30 to 40 feet and street lights would have interfered with the ability of the pedestrian to become aware of the approaching vehicle. The driver should have sounded his horn, flicked his lights, changed his speed, or moved to his left and closer to the middle of the road as he approached the single pedestrian who was proceeding no more than 2 to 3 feet from the travelled portion of the road.

In Leblanc v. Burcevski, [1995] A.J. No. 909, an intoxicated adult plaintiff, who was walking near the centre line of a 100 km. per hour highway was struck by the defendant, who saw him only at a distance of 3 feet after completing a pass of another vehicle. The defendant was held 40% liable for his negligence in not becoming aware of the presence of the plaintiff sooner.