In Annapolis County District School Board v Marshall, the Supreme Court of Canada confirmed that a heightened standard of care applies to drivers who operate their vehicles where children are likely to be present.
On April 12, 1994, four-year-old Johnathan Lee Marshall was hit by an empty school bus while playing with his brothers in front of his family’s home. The defendant, Douglas Feener, was driving along the highway in front of the Marshall’s home. Sadly, Johnathan ran onto the highway and into the path of the oncoming bus. Mr. Feener was unable to stop in time. Johnathan suffered catastrophic injuries. At trial, the jury found that Mr. Feener had not caused or contributed to Johnathan’s injuries.
Our courts have long held that a heightened standard of care applies to drivers who operate their vehicles where children are likely to be present. What was at issue in this case was the manner in which a trial judge should charge the jury.
In his charge to the jury in this case, the trial judge referred to the statutory right-of-way provisions in the Nova Scotia Motor Vehicle Act. These provisions state that “every pedestrian crossing a roadway at any point other than within a marked or unmarked crosswalk, shall yield the right of way to vehicles upon the highway”. The trial judge also told the jury that the driver “has the right to expect that a pedestrian will not act without care.”
The Nova Scotia Court of Appeal held that the trial judge had misdirected the jury in referring to the right-of-way provisions under the Motor Vehicle Act. The reference to these provisions improperly invited the jury to treat Johnathan like an adult, which led the jury to find Johnathan responsible for the accident.
A majority of the Supreme Court of Canada held that the Court of Appeal had failed to appreciate the dual purpose of the statutory right-of-way provisions. Although these provisions can be used to determine whether the pedestrian is contributorily negligent, they can also help determine whether the driver breached the applicable standard of care in the circumstances. The trial judge made it clear early on in his charge that Johnathan could not be held contributorily negligent because of his young age. Thus, it would have been clear that the trial judge was properly referencing the right-of-way provisions only to determine the driver’s standard of care.
The Supreme Court held that the trial judge’s charge correctly indicated that if children are likely to be present, then the driver must take extra precautions; otherwise, the normal standard of care would apply. Although the trial judge had specifically noted that motorists should drive more carefully in school and playground areas and in a built-up residential district, the court held that the trial judge had not implied that these were the only circumstances in which children were more likely to be present.
Given that these particular circumstances were not present when this accident occurred, the jury would have correctly inferred that they were to determine whether any other special circumstances existed that would indicate to a driver that he was in an area where children were likely to be present.
Although the jury was not persuaded that special circumstances existed in this case, it serves as a cautionary tale that insureds can be held to a higher standard of care in an accident involving young people regardless of whether it takes place at a busy intersection or near a school.