Crystal Schick/Yukon News School zone signage on Lewes Boulevard in Whitehorse on Aug. 14, 2019.

Hergott: Are school zone speed restrictions necessary?

Lawyer Paul Hergott’s latest column

School zone speed restrictions are back. But they shouldn’t be necessary. And they fail to communicate an important safety message.

They shouldn’t be necessary because other laws require us to slow to a safe speed when children are likely to be around.

The important safety message I am referring to is that those laws extend to all of our roadways, not just the areas around schools.

Notions of who has the right of way go out the window, to a certain extent, when we are sharing roadways with children.

I found this statement of the law from the highest court in Ontario, in Saumur v. Antoniak, 2016 ONCA 851 “That children lack the judgment of adults and that they are notoriously forgetful when they are distracted or confused, and therefore do not follow instructions on the basis of which “they should know better”, are concepts that are generally accepted and that have been recognized by the courts as factors distinguishing the conduct of children from that of adults in the negligence liability context”.

We can reasonably expect that adult pedestrians and cyclists will follow the rules of the road. But when it comes to children, we must expect the unexpected.

Here is a common sense statement of the law quoted from a 1995 decision of the highest court of British Columbia, Williams (Guardian ad litem of) v. Yacub (1995) 14 B.C.L.R. (3d) 291 (C.A.). “Knowing that the actions of children are unpredictable a driver has a duty to take reasonable precautions for the safety of a child on or near the highway.”

Any time you see the word “highway” in our laws and court judgements, it has an expanded meaning to include streets, laneways and almost everywhere vehicles travel.

A more detailed statement of the law can be found in a 1990 decision of the same court, Chohan v. Wayenberg, 1990 CarswellBC 863 (C.A.). “There is, of course, a need for constant vigilance for children on the roads, especially in suburban areas, for the very reason that they can not be expected always to act with the same care that is expected of adults. Once observed in a dangerous situation, children must be given special attention, so that any precautionary or evasive action indicated will be taken in time.”

That’s the key. The onus is on us as drivers to be able to take evasive action in time.

How do we ensure we can do that?

We must be continually watchful for the presence of children on or near the roadway. Not just in school zones.

Once we identify their presence, we must keep our eyes peeled, carefully watching for any clues that they might put themselves in danger.

And drive at a speed that allows us sufficient reaction time to take evasive action.

Is that speed 30 kms/hour?

It depends.

If children are milling around, that might well be too fast.

On the other hand, if children are far enough away from your lane of travel, it might not be necessary to slow down at all.

Section 144(1)(c) of the Motor Vehicle Act , gives this flexible speed limit: “A person must not drive a motor vehicle on a highway at a speed that is excessive relative to the road, traffic, visibility or weather conditions.”

Of course, slow down at least to 30 kms/hour in school zones, even if you’re driving through a wide, empty street with all children safely in their classes. Tickets aren’t nice.

But go even slower as might be necessary to absolutely ensure that you will have time to take evasive action if a child does something stupid.

Regardless of whether or not you are in a school zone.

Please help keep our children safe.

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Hergott: ICBC fails at dismissing claim

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