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Can a driver sue a pedestrian who causes an accident?

Morning traffic on Yonge St. near King St. in downtown Toronto. (2012 file photo).

Fred Lum/The Globe and Mail

You answered a question about the liability of a pedestrian who caused a chain collision by crossing against the light and making a car slam on its brakes but you didn't mention lawsuits. Could drivers sue a pedestrian for an accident, even if insurance covers the damages? – Julie, Toronto

You don't have to be driving a car to be sued for negligence in an accident, experts say.

"In theory, there's no immunity to pedestrians," says Allan Hutchinson, Distinguished Research Professor at Osgoode Hall Law School. "But the pedestrian would have to be doing something foolhardy."

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It's possible to sue a pedestrian for damages in a car accident, but you'd have to show that the pedestrian was negligent – and that you weren't, Hutchinson says. Drivers are expected to follow the rules and watch out for pedestrians, so you could be out of luck if you were shown to be speeding or on your cell phone.

"The driver would have to be cleared of negligence," Hutchinson says. "The standard of care would be quite high."

If a driver slammed on the brakes and was hit from behind, that driver who hit him is at fault for following too closely. But that doesn't necessarily leave the pedestrian off the hook, says Lewis Klar, professor emeritus at the University of Alberta's faculty of law.

"The fact that the drivers may also have been at fault in following too closely, for example, does not relieve other negligent parties of their responsibility," said Klar in an email. "Many car accidents involve more than one negligent party."

There's another possible hitch: since pedestrians don't have insurance, you might have a hard time collecting any damages, Hutchinson says. "There's no point in suing unless you can get money."

You would need to have some recognizable injury, including damage to property. In Ontario, you'd have to sue a pedestrian for damages in a civil suit, and not under the Insurance Act, which limits lawsuits against drivers in car accidents.

There are no limits to how much you can sue for in a civil case, but whether you'll be rewarded that is a different story, Hutchinson says.

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"You could sue for $100-million if you like, people sue for the most ridiculous amounts," he says. "That's because you can never get rewarded more than you sued for."

"In Ontario, any injured person involved in a motor vehicle accident, regardless of fault, has access to a comprehensive package of accident benefits," Kristen Rose, Financial Services Commission of Ontario spokesperson, said in an email. "People who are more seriously injured and not at-fault for the accident may sue for economic loss or health care expenses in excess of their accident benefit coverages and for pain and suffering."

Another reason to wait at crosswalks: If the pedestrian broke the law and was injured in the accident, her accident benefits could be reduced, Rose says.

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