ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘cyclist collisions’

BC Court of Appeal – Cyclist 50% at Fault for Collision for Passing Vehicles on the Right

July 12th, 2017

Cyclists commonly split a single lane of traffic by riding near the curb and passing vehicles stopped at an intersection on the right.  Reasons for judgement were released today noting that doing so not only violates the Motor Vehicle Act but can be negligent as well.

In today’s case  (Ilett v. Buckley) the Court overturned a trial judges finding of 100% responsibility of the Defendant driver.  The court summarized the facts as follows:

[5]             Mr. Ilett was riding on the shoulder of Admirals northbound.  He was passing to the right of the slow-moving vehicles.  Other cyclists were riding on the shoulder in the same way.  He considered the shoulder to be a cycle lane.  The road was flat for 300 yards leading to the intersection.  He was seen approaching the intersection by the driver of the vehicle that was stopped behind Ms. Buckley’s vehicle, Messa Mattina; he was visible to her for a significant distance.  Mr. Ilett scanned the traffic as he rode and he saw the large vehicle at the intersection ahead.  He saw the gap in the northbound traffic ahead of that vehicle opening.  He did not apply his brakes to slow his bicycle.

[6]             The large vehicle precluded Ms. Buckley and Mr. Ilett from seeing each other as she began her turn and he closed on the intersection.  Accepting Ms. Mattina’s testimony, the judge found that Ms. Buckley commenced her turn slowly but, before she could see Mr. Ilett approaching, she accelerated across the northbound traffic lane.  Nearly the whole of the front half of her vehicle was across the shoulder when, after hearing a screech of brakes, Mr. Ilett crashed into it.  His momentum was such that he was carried over the hood of the vehicle and onto the pavement beyond.  The impact caused him to suffer various injuries.  He was taken to hospital.

In finding the cyclist should bear 50% responsibility for this crash the Court of Appeal noted as follows:

[23]         He was riding on the shoulder of the road at speed, passing the slow-moving northbound vehicles.  He failed to recognize, as he should have, that he was not riding in a designated cycle lane and, at least under the Act, was not permitted to pass vehicles on the right as he was.  He was approaching an intersection.  He saw the gap in the northbound traffic open ahead of a large vehicle which would permit a southbound vehicle on Admirals to turn left onto Seenupin.  He could not see whether the intersection was clear because the large vehicle was obstructing his vision.  He made no attempt to slow down to see whether the intersection was clear – whether any vehicle was turning into the gap that had opened.  He proceeded to pass the large vehicle on its right, entered the intersection, and immediately collided with Ms. Buckley’s vehicle.

[24]         It is difficult to see on what basis the judge found in effect that, by virtue of s. 174, Ms. Buckley had a duty to yield to Mr. Ilett such that he effectively had the right of way when under s. 158 of the Act he was not permitted to pass the large vehicle on the right and enter the intersection as he did.  It cannot be that one applicable section of the Actis to be taken to be a factor in establishing the standard of care but another section that would apply in the circumstances is not.  It is not for the court to pick and choose between interrelated sections that apply.  Rather it must be the whole of those sections, and the extent to which taken together they bear on the circumstances, that may be considered a factor in determining the standard of care.  To do otherwise would appear to amount to legal error. ..

[33]         As stated, the cause of the accident was primarily that neither Ms. Buckley nor Mr. Ilett saw each other before the collision.  That was because neither exercised the measure of caution necessary to discharge their duty to make a reasonable effort to ensure they could proceed as they intended safely.

[34]         It is not possible to establish different degrees of fault in the circumstances of this case such that in accordance with s. 1 of the Negligence Act, R.S.B.C. 1996, c. 333, liability is to be apportioned equally.


Cyclist Found 15% at fault For Collision While Riding in Cross-Walk

November 5th, 2012

In my continued efforts to document BC decisions addressing fault for vehicle/cyclist collisions, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing an crosswalk collision involving such an incident.

In last week’s case (Callahan v. Kim) the Defendant motorist stopped at an intersection on a red light.  He intended to make a right hand turn.  At the same time the Plaintiff cyclist approached on the sidewalk to the motorist’s right.   The Defendant failed to see the Plaintiff who entered the intersection on his bicycle as the Defendant commenced his right hand turn.  The Court found both to blame with the motorist shouldering 85% of the fault.  In coming to this decision Madam Justice Fenlon provided the following reasons:

[10]         As for Mr. Kim’s vehicle, I find that he stopped at the stop line on Riverwood Gate, intending to make a right turn north onto Coast Meridian. He looked quickly to his right and failed to notice the plaintiff who at that time was either at the pedestrian control button or approaching it. Thereafter, as Mr. Kim admitted, he was looking to his left and then ahead and did not check right again before moving into the crosswalk and colliding with Mr. Callahan…

[18]         In assessing whether Mr. Kim failed to meet his duty of care, a number of considerations come into play. First, Mr. Kim was proceeding against a red light. Second, Mr. Callahan was in a marked crosswalk with both a green light and a pedestrian walk sign in his favour. I find that, even though Mr. Kim acted within the law in making a right turn on a red light, he had a clear duty to give way to a user of the crosswalk. While Mr. Callahan contravened s. 183(2)(b) by not dismounting and walking his bicycle across the street as required by the Motor Vehicle Act, and therefore did not have the statutory right-of-way, he was nonetheless a user of the crosswalk. A crosswalk is precisely where other users of the roadway are expected to be, especially when the traffic signals are in their favour.

[19]         I conclude that Mr. Kim departed from the standard of care he owed in these circumstances when he failed to check again to his right before setting his vehicle in motion to start his right turn. Mr. Kim’s failure to do so was a direct cause of the accident…

[33]         In my view, the case before me is far more like Dobre. In that case, the plaintiff cyclist approached the intersection by riding on the wrong side of the street but stopped before entering the marked crosswalk, looked left and right and pushed the button to activate the pedestrian warning light. He was pedalling slowly across the intersection and was close to the centre of the road when the defendant’s car struck the rear wheel of his bicycle. As in the case at bar, the plaintiff in Dobre checked to his left and observed a car approaching but assumed it posed no hazard to him. In that case, N. Brown J. apportioned liability 85% to the driver and 15% to the cyclist.

[34]         I find Mr. Kim’s conduct in failing to observe the plaintiff in the crosswalk and in starting a turn without looking to his right to be far more blameworthy than Mr. Callahan’s failure to make eye contact. Taking into account all of the circumstances in the case before me, I conclude that liability should be apportioned 85% to Mr. Kim and 15% to Mr. Callahan.


Motorist 75% At Fault for Striking Cyclist on Sidewalk

October 28th, 2011

Although Section 183 of the Motor Vehicle Act prohibits a cyclist from riding on a sidewalk, motorists need to keep a lookout for this common breach of the law.  Failure to do so can result in fault in a motor vehicle collision as was demonstrated in reasons for judgement released yesterday by the BC Supreme Court, Vancouver Registry.

In yesterday’s case (Deol v. Veach) the Plaintiff cyclist was travelling Southbound on a sidewalk on Scott Road in Surrey, BC.  This was against the flow of traffic for his side of the street.  At the same time the Defendant motorist was exiting a Safeway parking lot attempting to turn right onto Scott Road.

The Defendant failed to see the Plaintiff and a collision occurred.  Both parties were found at fault with the Court placing the majority of the blame on the motorist for failing to keep a proper lookout.  In reaching this finding Madam Justice Dardi provided the following reasons:

[25] A critical and uncontroverted fact in this case is that the defendant did not see the plaintiff when he looked to the right as he was approaching the Exitway. On his own admission his unobstructed view of the Sidewalk to the north was for some 200 feet. Moreover, after the defendant stopped just east of the unmarked crosswalk at the Exitway, and prior to executing his right turn, he did not look to the right again. The defendant was in clear violation of s. 144 of the MVA, which prohibits driving without due care and attention and without reasonable consideration for others. Although the plaintiff was riding in the direction facing traffic, the Exitway, which was bordered by a sidewalk on both sides, was precisely where a motorist should reasonably have expected to encounter another user of the road. Unlike the plaintiff in Ivanoff v. Bensmiller, 2002 BCCA 173, the plaintiff was not in an unexpected location. The defendant was well aware that both pedestrians and cyclists used the sidewalks on Scott Road.

[26] I find on the totality of the evidence that had the defendant acted in a reasonably prudent manner he would have seen the plaintiff. The plaintiff was there to be seen by the defendant. Had the defendant maintained a proper look-out there is an irresistible inference that the collision would have been avoided. I therefore conclude that the defendant failed to meet the standard of care of an ordinarily prudent driver required in the circumstances, and that his failure to do so was a cause of the accident. In the result I find the defendant negligent…

[36] I consider the defendant’s failure to keep a proper lookout, his failure to observe the plaintiff who was there to be seen, and his execution of a right turn while focussing to his left, more blameworthy than the lapse of care of the plaintiff, who, after stopping at the Exitway and observing the defendant’s vehicle come to a stop, failed to make eye contact with the defendant prior to proceeding through the Exitway.

[37] In the end I find that the defendant was substantially but not entirely to blame for the accident and therefore I attribute fault to both parties. I apportion liability 75% to the defendant and 25% to the plaintiff.


Cyclist 15% At Fault for Crash For Riding in Crosswalk

October 5th, 2011

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing the issue of fault when a cyclist is struck by a vehicle while riding their bicycle in a marked cross-walk.

In today’s case (Dobre v. Langley) the Plaintiff intended to cross Martin Drive in Surrey, BC.  He approached  a marked cross-walk, activated the pedestrian lights, mounted his bike and began to cycle across the cross-walk.  At the same time the Defendant was driving near the middle lane of Martin Drive.  She “never saw” the Plaintiff prior to impact and was “completely oblivious to his presence until after impact.“.

The court found that while the Plaintiff lost his statutory right of way by riding his bike in a cross-walk the Defendant still owed a duty of care and was in breach of this by driving carelessly.  The Plaintiff was also found 15% at fault for riding in the cross-walk.  Paragraphs 31-49 of the reasons for judgement do a good job discussing the legal principles in play in these types of cases.  In coming to a 85/15 split of fault Mr. Justice Brown provided the following useful comments:

[41] In the circumstances of this case, particularly Mr. Dobre’s decision to ride across the intersection crosswalk, which heightened his duty of care, he either should have waited longer at the curb to ensure the defendant was responding to the pedestrian warning lights, or at least have more carefully monitored the defendant’s approach to ensure he could proceed safely. Had he noticed sooner that the defendant was not reducing her speed, he likely could have gotten completely ahead of harm’s way. Mr. Dobre’s decision to ride his bike across the intersection, and his resulting heightened duty, required at least those simple steps to maximize the chances the defendant was noticing him and to ensure his own safety….

[47] By any fair measure, Mr. Dobre did exercise a considerable degree of care. He stopped at the curb, straddling the bike. He looked west and east. He saw the defendant well to the east. He mistakenly reasoned she was far enough away to give him no reason for concern, especially, he thought, with the warning the flashing lights would give. He mounted the seat. He pedalled across the intersection slowly. When he saw the defendant at the last moment, he pedalled a few hard strokes, almost succeeding in removing himself from harm’s way. Apart from his one glance in either direction before pushing the button, however, he paid no further regard to Ms. Lang’s approach.

[48] In the case at bar, Mr. Dobre, for the reasons stated, owed a heightened duty of care. The defendant, for her part, was approaching a well-marked crosswalk and, in the circumstances, should have been extra vigilant in maintaining a lookout for those who might be approaching or in the crosswalk.

[49] Considering all the circumstances, I find the apportionment that fairly reflects the parties’ relative blameworthiness is an 85/15 split in liability, favouring Mr. Dobre. Mr. Dobre will thus recover 85% of his damages, to which I now turn.


Cyclist Found Fully At Fault For Collision With Vehicle

February 15th, 2011

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing the issue of fault following a serious collision between a cyclist and a vehicle.

In today’s case (Ireland v. McKnight) the Plaintiff was a doctor who was involved in a “career-ending road traffic incident” in 2007.   The Plaintiff was travelling southbound on his bicycle on Henderson Road.  At the same time the Defendant passed the Plaintiff in the same direction of travel.  At this time a collision between the bicycle and vehicle occurred.

The Court heard competing theories about how the collision occurred but ultimately found that the Plaintiff drove into the vehicle and was fully responsible for the crash.  In dismissing the lawsuit Mr. Justice Wilson provided the following reasons:

[22]         I find the defendants’ theory of how contact occurred to be the more plausible.

[23]         I find the front wheel of the bike contacted the right rear quarter panel of the car, behind the right rear wheel well.

[24]         If, as the plaintiff argues, the car was on a collision course with the bike, or failed to adjust sufficiently to avoid a collision course, then I find that the right front corner of the car would have struck the bike.  The evidence does not support such a finding.

[25]         I conclude that the plaintiff moved the bike to the left, concurrently with the turn of head in that direction.  But for the plaintiff moving the bike, there would have been no contact between the bike and the car.

[26]         I find the defendant driver passed the bike at a safe distance, and, on the evidence, that at least three-quarters of the car length had passed the bike before contact occurred.

[27]         In result, I find the defendant driver not liable for the incident.  It follows that the plaintiff’s claim against the defendant driver, pursuant to s. 86 of the Motor Vehicle Act, fails.


Bus Driver Found 50% Responsible For Collision With Cyclist Riding in Crosswalk

June 18th, 2010

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a collision between a school bus and a cyclist.

In today’s case (Torok v. Sekhon) the Plaintiff was travelling southbound on a sidewalk in Surrey, BC.  He was travelling on the left side of the street.    At the same time the Defendant was operating a school bus and driving in the opposite direction of travel.  As the Defendant approached an intersection he put on his right turn signal and proceeded to make a right turn.  The Plaintiff, who was travelling down hill, did not yield and entered the roadway from the sidewalk.  A collision occurred.

Mr. Justice Smith was asked to determine the issue of fault.  The Court found that both parties were equally at fault for the collision.  In reaching this decision Mr. Justice Smith reasoned as follows:

[18]         The essential fact in this case is that Mr. Sekhon did see Mr. Torok and Mr. Kolba approaching the intersection at which he planned to turn. Moreover, he was driving in an area and at a time of day when the presence of children was to be expected. The duty on a driver in such a situation was recently summarized by Greyell J. in Chen v. Beltran, 2010 BCSC 302 at para. 27:

[27]      The general principle underlying any determination of fault or blameworthiness rests on a finding whether the defendant could reasonably foresee that his or her conduct would cause or contribute to the accident. When it is known there are young children in the area drivers must use extra care and attention as children do not always behave as adults would in similar circumstances. In Chohan v. Wayenberg (1990), 67 D.L.R. (4th) 318 (B.C.C.A.), the Court of Appeal stated at 319:

… 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.

[19]         The plaintiff in Chen was 11 years old. The plaintiff in this case was somewhat older, but still of an age when a reasonable driver would know that he would not necessarily act “with same care that is expected of adults”. Indeed, the tendency of teenagers to engage in reckless behaviour is well known.

[20]         Having seen Mr. Torok and knowing that their paths were about to cross, the duty of Mr. Sekhon was to proceed with caution and to complete his turn only when he could do so safely. That meant either satisfying himself that he could complete his turn before the boys reached the intersection or, more prudently, slowing or stopping until he knew that the boys had either passed the intersection or had stopped to allow him to pass.

[21]         Mr. Sekhon failed to take either precaution. Although he clearly saw the boys and knew their direction of travel before his turn, he was apparently unaware of their location as he was actually making the turn. There is no evidence of anything that would have prevented Mr. Sekhon from stopping briefly in order to ensure that he could turn safely. I therefore find that, in the circumstances, Mr. Sekhon failed to take sufficient care and was negligent.

[22]         However, I find that Mr. Torok also failed to take reasonable care for his own safety. He was riding his bicycle on a sidewalk, then into a crosswalk, and was riding on the left, rather than the right side of the road. All of those actions are violations of s. 183(2) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. He was also riding without a helmet, in violation of s. 184. Mr. Torok was of sufficient age and experience to know, and in fact did know, that he was riding in an illegal manner. He also knew that he was approaching an intersection at a high speed and needed to be aware of the possibility of vehicles turning either into or from 150th Street. He saw the approaching school bus and failed to notice its turn signal. As a result, I find that Mr. Torok was contributorily negligent.

[23]         In such circumstances, the apportionment of liability must be based on the degree to which each of the parties was at fault, not on the degree to which each party’s fault caused the damage:  Bradley v. Bath, 2010 BCCA 10 at para. 25. In Bradley, the Court of Appeal adopted the following passage from Fleming on The Law of Torts:

[25]      The concept of contributory negligence was described in John G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998) at 302, as follows:

Contributory negligence is a plaintiff’s failure to meet the standard of care to which he is required to conform for his own protection and which is a legally contributing cause, together with the defendant’s default, in bringing about his injury. The term “contributory negligence” is unfortunately not altogether free from ambiguity. In the first place, “negligence” is here used in a sense different from that which it bears in relation to a defendant’s conduct. It does not necessarily connote conduct fraught with undue risk to others, but rather failure on the part of the person injured to take reasonable care of himself in his own interest. … Secondly, the term “contributory” might misleadingly suggest that the plaintiff’s negligence, concurring with the defendant’s, must have contributed to the accident in the sense of being instrumental in bringing it about. Actually, it means nothing more than his failure to avoid getting hurt …

[Emphasis in original; footnotes omitted.]

[24]         The facts of Bradley are somewhat similar to this case. There, a bicycle on the sidewalk collided with a vehicle that was coming out of a gas station. The Court of Appeal said at para. 28:

[28]      In my opinion, the plaintiff was at fault, and his fault was one of the causes of the accident. Contrary to law, he was riding his bicycle on the sidewalk against the flow of traffic. He saw the defendant’s vehicle moving towards the exit he was approaching. Rather than making eye contact with the defendant or stopping his bicycle and letting the defendant’s vehicle exit the gas station, the plaintiff assumed the defendant saw him and would not accelerate his vehicle. In these circumstances, he was at fault for continuing to ride his bicycle across the path to be taken by the defendant’s vehicle in exiting the gas station.

[25]         Although I have found that Mr. Torok, at age 14, was old enough to be found contributorily negligent, I must still consider his age in the apportionment of fault. His conduct is to be measured against what is to be expected of a reasonable person of his age and experience, not against the standard of an adult:  see Parker v. Hehr, (20 December 1993), Vancouver B914957 (B.C.S.C.), citing Ottosen v. Kasper (1986), 37 C.C.L.T. 270 (B.C.C.A.); and McEllistrum v. Etches, [1956] S.C.R. 787.

[26]         In the circumstances, I find that Mr. Torok and Mr. Sekhon were equally at fault. Each saw the other and each failed to take the necessary precautions to allow for the other’s presence and possible movements. Balancing all of the factors, including Mr. Torok’s violations of the governing statute, his age, and Mr. Sekhon’s knowledge of the nature of the area and the likely presence of young people, I cannot say that one party is more culpable than the other. I therefore find that the defendants must bear 50 per cent of the liability for the accident.


Can You Successfully Sue For Injuries in a "No Impact" Collision?

May 26th, 2010

Further to my previous post on this topic, the law is clear that a Plaintiff can successfully sue a Defendant for physical injuries even if the Defendant never makes contact with a Plaintiff.  Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, demonstrating this.

In today’s case (Bern v. Jung) the Plaintiff was injured in 2 separate incidents.  In the first incident the Plaintiff was riding a bike down a ramp into a parkade.  At the same time the Defendant was leaving the parkade and drove his vehicle ‘in the wrong direction in the entrance lane towards the ramp area‘.  The Plaintiff “immediately applied his brakes, losing control of his bicycle and falling over the handlebars.  He fell out into the roadway.   Fortunately (the Defendant) was able to avoid striking (the Plaintiff)”.

The Defendant argued that the Plaintiff should bear some responsibility.  Mr. Justice Powers disagreed and found that the Defendant was 100% responsible for the incident despite not striking the Plaintiff.  In reaching this decision Mr. Justice Powers noted as follows:

[13]        I find that the defendant has not proven that Mr. Bern was contributorily negligent.  Mr. Bern was entitled to assume that other people would be acting properly.  The evidence does not establish that his speed was excessive to the extent that it was negligent.  I find that the sole cause of the accident was Mr. Jung’s decision to take a shortcut and travel against the direction in which traffic was supposed to flow and could reasonably be expected to flow.

[14]        Mr. Bern lost control of his bicycle and fell because of the sudden and unexpected presence of Mr. Jung’s vehicle travelling in the wrong direction.  Mr. Bern was forced to act quickly and to apply his brakes forcefully.  He essentially acted in the agony of the collision and should not be found contributorily negligent because he did so.

[15]        I find that Mr. Jung is 100% liable for the accident on June 21, 2007.

The Plaintiff suffered various injuries including pain in his clavicle, one or two fractured ribs, a fractured right triquetrum (a small bone on the outside portion of the back of the hand) and broken teeth which required dental work and root canals.

Some of the injuries were aggravated in a subsequent rear end accident.  The Court went on to award the Plaintiff $50,000 for his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) as a result of both accidents.  In reaching this figure Mr. Justice Powers summarized the effect of the Plaintiff’s injuries as follows:

[36] I find that Mr. Bern indeed was a physically active and motivated individual before the first accident.  He made an honest effort to attempt to return to his prior physical active state, but is continuing to have some difficulty because of the soft tissue injuries, leaving him with lingering symptoms.  The second accident aggravated those injuries and probably extended the time in which they will affect Mr. Bern.  The second accident aggravated the problems he had with his shoulder, neck and back.  The aggravation of his pain and problems he is suffering in attempting to exercise also added to his depression and anxiety.  I accept that on occasion he is anxious about driving and that this results from the second motor vehicle accident, but that it does not prevent him from driving…

[40] I do find, however, that on the balance of probabilities, in other words that it is more likely than not, that those symptoms will be reduced over time…

[44] I find that general damages should be $50,000.00.  I apportion $15,000.00 of that amount to the second accident.  I am satisfied that the second accident aggravated the existing injuries and contributed to some additional injuries.  However, the significant injuries and pain and suffering arise from the first accident.


BC Court of Appeal Finds Cyclist 50% at Fault for "Cycling Between Lanes"

April 26th, 2010

Reasons for judgement were released today by the BC Court of Appeal addressing the issue of fault for a cyclist involved in an intersection crash.

In today’s case (MacLaren v. Kucharek) the Plaintiff cyclist was injured when he was travelling through an intersection in Surrey BC when he was struck by a left hand turning vehicle approaching from the opposite direction.  At  trial the driver of the vehicle was found 100% at fault.  The vehicle operator appealed and the BC High Court overturned the trial judgement and found the cyclist 50% at fault.

The roadway the cyclist was travelling on had one marked lane but as it approached the intersection it “widens…(and) although unmarked as two lanes, there is sufficient room for two vehicles to travel abreast within the one marked lane.”  Critical to the Court’s judgement was a finding that although unmarked, the roadway had “two de facto lanes” just prior to the intersection.

It was accepted that vehicles that drove in the right of these two defacto lanes were right turning vehicles. Vehicles that intended to drive straight through the intersection stayed in the left hand portion of the wide lane.  As the cyclist approached the intersection a vehicle in front of him in his direction fo travel stopped and left a “gap in the traffic lined up behind the intersection“.  The Plaintiff passed this traffic on the right and entered the intersection (basically travelling down the centre of these two defacto lanes).  At the same time the Defendant made a left hand turn into the intersection resulting in collision.  The Defendant testified that he never saw the cyclist prior to the crash.

The driver was found at fault for failing to see the cyclist.  In finding the cyclist 50% at fault the BC Court of Appeal provide the following reasons:

The question that arises, however, is whether Mr. MacLaren should have “taken the lane”; that is, ridden behind the other traffic in the lane, rather than do what he did which was to put himself beside vehicles in that lane and to pass them on the right…

…In my view it is not so much that Mr. MacLaren was passing on the right when he was struck by the appellant, but that he was riding between what were effectively two lanes of travel before entering the Laurel Drive intersection.  In my view, s. 183(2)(c) (which required him to ride as near as practicable to the right side of the highway), did not authorize him to ride between two lanes of travel.  For Mr. MacLaren to ride between two unmarked but commonly travelled lanes immediately prior to reaching the Laurel Drive intersection was dangerous because a northbound left-turning driver would have little opportunity to see him as he cycled alongside vehicles to his left.  In my view, given the configuration of the roadway and the pattern of traffic in this case, for Mr. MacLaren to cycle alongside vehicles to his left created a danger both to himself and to the appellant.

[29] While Mr. MacLaren did the right thing by moving out of the curb lane, he should have moved in behind the vehicles travelling toward the “through” lane, not beside them.  By cycling between lanes Mr. MacLaren did not show sufficient care for his own person to avoid a finding of contributory negligence.  Taking a lane was the only way, in my view, that a bicyclist could have satisfied the mandate of s. 183(2)(c) to safely travel as near as practicable to the right of the highway…

I am of the view that the trial judge erred in failing to conclude that Mr. MacLaren, in choosing to ride in between the two travel lanes and beside the stopped pick-up rather than in the lane of travel behind it, did not take reasonable care for his own safety.  His failure to take reasonable care for his own safety was one of the causes of the accident.  Mr. MacLaren was therefore contributorily negligent.


Court of Appeal Discusses Liability of Cyclists Riding In Crosswalks

January 13th, 2010

Reasons for judgement were released today by the BC Court of Appeal discussing the law of negligence with respect to cyclists who are struck by a vehicle while riding on a cross-walk.

In today’s case (Bradley v. Bath) the Plaintiff was involved in a 2003 BC Cycling/Motor Vehicle Accident.  He was riding his bicycle on the sidewalk heading towards a gas station.  At the same time the Defendant was driving a car attempting to exit the gas station.  The Defendant struck the Plaintiff.  The Plaintiff sued for damages and succeeded.  The trial Judge Found the Defendant 100% at fault and damages of $396,753 were awarded.  In coming to her conclusion  she stated  “the plaintiff was not contributory negligent because the plaintiff could have been struck by the defendant’s vehicle if he had been a jogger, rollerblader or regular pedestrian rather than riding his bicycle.  Thus, she concluded that the plaintiff’s breach of the Motor Vehicle Act was not causally connected to the accident.

The Defendants appealed arguing, amongst other things, that the Trial Judge was wrong in finding the motorist 100% at fault.  The Appeal was successful and the Court of Appeal concluded that the cyclist was 50% at fault for the crash.  In reaching this decision Mr. Justice Tysoe stated as follows:

[27] In my respectful view, the trial judge did not ask the correct question.  The proper question was not whether a jogger, rollerblader or pedestrian could have been hit by the defendant’s vehicle.  The correct inquiry was to determine whether the plaintiff failed to take reasonable care for his own safety and whether his failure to do so was one of the causes of the accident.  While the judge acknowledged that the plaintiff was under a heightened duty of care because he was in breach of the law by riding his bicycle on the sidewalk, she failed to give effect to the heightened duty because she did not consider what care had been taken by the plaintiff when he saw the defendant’s vehicle moving towards the exit from the gas station.

[28] In my opinion, the plaintiff was at fault, and his fault was one of the causes of the accident.  Contrary to law, he was riding his bicycle on the sidewalk against the flow of traffic.  He saw the defendant’s vehicle moving towards the exit he was approaching.  Rather than making eye contact with the defendant or stopping his bicycle and letting the defendant’s vehicle exit the gas station, the plaintiff assumed the defendant saw him and would not accelerate his vehicle.  In these circumstances, he was at fault for continuing to ride his bicycle across the path to be taken by the defendant’s vehicle in exiting the gas station…

[30] I am of the view that the fault of the parties in this case is equal.  The plaintiff’s fault was riding his bicycle on a sidewalk against the flow of traffic and continuing to ride across the path of the exiting vehicle without ensuring his way was clear.  The defendant’s fault was his failure to keep a proper lookout when exiting the gas station.  I do not believe that one party is more culpable than the other.

This case is also worth reviewing for the Court’s discussion of “In Trust” Claims and awards for “Diminished Earning Capacity” which can be found at paragraphs 37 – 52 of the Reasons for Judgement.