Motorist Found Fully Liable For Striking Cyclist in Dedicated Bike Lane

Reasons for judgement were published today by the BC Supreme Court, Kelowna Registry, discussing the duties of cyclists riding in dedicated bike lanes.

In today’s case (Charlton-Miner v. Hedgecock) the Plaintiff was travelling on a bicycle in a dedicated bike lane.  As she approached an intersection that she was driving straight through the Defendant motorist approached from her rear and “turned across the plaintiff’s path, causing the right side of his vehicle to collide with the plaintiff’s left shoulder area and causing her to fall.”  The Plaintiff’s bike lane was to the right of a designated right hand turn lane.

ICBC argued that the Defendant should not be at fault for striking the cyclist for a variety of reasons including that the cyclist should have had a rear view mirror and somehow reacted differently and further arguing that the cyclist should have left the dedicated bike lane and entered the lanes intended for vehicles to go through the intersection because the bike lane was to the right of a dedicated right hand turn lane.  In rejecting these arguments and finding the motorist 100% at fault Mr. Justice Wilson provided the following reasons:

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Mother Found 50% at Fault For Striking Her Son With Vehicle

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing fault following the somewhat unusual fact pattern of a mother striking her own son with a vehicle.

In today’s case (Pringle v. Pringle) the Court described the circumstances and some of the evidence surrounding the collision as follows:

[2]             The collision took place after midnight, in a roundabout driveway just outside Mr. Pringle’s apartment building. Mrs. Pringle had driven over to speak with Mr. Pringle. Mr. Pringle’s sister, Emily Pringle, accompanied her mother. The visit had not gone well. It ended when Mr. Pringle told his visitors to leave and threatened to call the police. They did as he asked, but Mrs. Pringle accidentally took Mr. Pringle’s keys with her when she left. They met in the driveway a short while later to return the keys.

[3]             Immediately before the collision, Mrs. Pringle was at the wheel of her car with the ignition on. Emily was sitting in the front seat on the passenger side. Mr. Pringle was standing outside the car. Mr. Pringle and Mrs. Pringle were arguing through an open window.

[4]             Mr. Pringle testifies that what happened next was that Mrs. Pringle began to drive away, circling the roundabout, while he was standing on the roadway. Mrs. Pringle was driving angrily and recklessly. When he realized that she was driving back towards him and was not going to veer away, he jumped and was hit by the moving car’s windshield.

The Court found both parties equally liable for the crash.  In faulting both the driver and pedestrian Mr. Justice Gomery provided the following reasons:

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Bus Driver Not Liable For Injuring Passengers By Braking Hard to Avoid Pedestrian

Reasons for judgement were published today by the BC Supreme Court, Kelowna Registry, dismissing a negligence claim against a bus driver whose hard braking injured several passengers.

In today’s case (Clarkson v Elding) multiple plaintiffs sued for damages following injuries sustained while passengers on a bus.  The Defendant operator “braked suddenly to avoid a collision with a pedestrian who was jaywalking across East Hastings.”  The resulting force of the braking “caused many passengers on the bus, including the plaintiffs, to fall or be slammed against seats and/or other passengers“.

The claims were dismissed with the court finding no negligence in these circumstances.  In reaching this conclusion Madam Justice Horsman provided the following reasons:

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Police Officer in Pursuit Found Fully at Fault for Intersection Collision

Reasons for judgement were published today by the BC Supreme Court, Chilliwack Registry, finding a police officer fully at fault for an intersection collision with another motorist.

In today’s case (Burroughs v. Chiasson) the Plaintiff was an RCMP officer involved in a crash in 2013.  At the time, while driving a fully marked RCMP vehicle, she “pursued a truck with an uninsured trailer by attempting to turn left, on a red light, onto Young Road from the westbound curb lane on First Avenue. While making this turn, she collided with a minivan driven by the defendant, Jennifer Chiasson. Ms. Chiasson was driving eastbound on First Avenue.”.

The RCMP officer sued the other motorist claiming damages from the collision.  The claim was dismissed with the Court finding that the Plaintiff entered the intersection when it was dangerous to do so in circumstances with no particular urgency.  In dismissing the claim and finding the officer fully at fault for the crash Mr. Justice Basran provided the following reasons:

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Rear-Ended Motorist Found Partly At Fault For Collision

As previously discussed, occasionally a motorist who is rear-ended by another can be found liable for the collision.  Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, with such a result.

In the recent case (Bay v. Woollard) the Plaintiff struck a vehicle that had, moments prior, struck another vehicle.  The middle motorist in the three car pile up was found 25% at fault for the second collision despite being rear-ended.  The primary reason for this finding was the Defendant’s failing to brake before the first crash thus depriving the Plaintiff of full notice of the imminent hazard.  In reaching a 75/25 split for the impact Mr. Justice Harvey provided the following reasons:

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Cyclist Struck in Marked Crosswalk Found 100% at Fault for Crash

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing a personal injury claim involving a cyclist struck by a vehicle.

In today’s case (Dhanoya v. Stephens) the Plaintiff cyclist rode into a marked crosswalk without stopping and was struck by a vehicle.  The Court found the cyclist was fully at fault for the collision and had the cyclist kept a proper lookout the collision could have been avoided.  In finding the cyclist solely liable Madam Justice Dillon provided the following reasons:

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Pedestrian Found 80% At Fault For Being Struck While Jaywalking

Reasons for judgement were published this week by the BC Court of Appeal upholding a trial judge’s assessment of fault for a pedestrian/vehicle collision.
In the recent case (Vandendorpel v. Evoy) the Plaintiff was struck while crossing a street.  He was at a light controlled intersection.  He pressed the button to activate the pedestrian walk signal but did not wait for the signal to come on.  Instead, he proceeded to cross the street while the signal for traffic in his direction was still red.  The Defendant was driving marginally over the speed limit and entered the intersection on a fresh yellow light striking the jaywalking pedestrian.   At trial the plaintiff was found 80% at fault for the crash.  In upholding this result the BC Court of Appeal agreed with the following reasonsing of the trial judge:

[53]      While both parties failed in their respective duties of care, I find Mr. Evoy’s failure was much less significant than Mr. Vandendorpel’s. His negligence consisted of driving at a speed that was over the posted limit, even if it was only minimally above that limit (i.e., approximately 55 km/hr in a 50 km/hr zone) and doing so when the lighting and road conditions were less than optimal. Compared to this conduct, Mr. Vandendorpel’s failures were more serious. He was dressed in dark clothing, including a dark hooded pullover that was zipped up to the top. None of his clothing had any light reflective qualities. Counsel for Mr. Vandendorpel submits that wearing dark clothing is not in and of itself contributory negligence. That submission is correct, but Mr. Vandendorpel’s failures are greater than simply the clothing he was wearing. He was also wearing headphones and listening to music and that reduced his ability to hear any on-coming traffic. He also had to cross a five-lane roadway that spanned approximately 18 metres. Although he depressed the pedestrian control device, he only waited a second or so before he attempted to cross the roadway. He carelessly did so even though the pedestrian control signal was still red and the traffic control signals were still green. Mr. Evoy’s vehicle approached the Intersection from the north. That is the direction Mr. Vandendorpel was initially walking. The headlights of Mr. Evoy’s vehicle would have been visible from at least 100 metres away. Mr. Vandendorpel must not have looked north on Sooke Road as he began to cross the roadway because he did not see the headlights of Mr. Evoy’s vehicle until it was approximately 30 metres away from him. That is, until the vehicle was just about to enter the Intersection. At that point, the pedestrian control signal was still red and the traffic control signal was yellow. Notwithstanding all of this, Mr. Vandendorpel chose to run across the path of the on-coming car instead of standing fast or retreating.

[54]      I remain of the firm opinion that Mr. Vandendorpel showed a reckless disregard for his duties as a pedestrian on the roadway and conclude that his degree of fault for the accident is greater than that of Mr. Evoy.

[55]      The case authorities counsel provided me with respect to apportionment have been helpful. Each party’s degree of responsibility is to be decided by assessing the risk their respective conduct created, the effect of that risk, and the extent to which each party departed from the standard of reasonable care (see: MacDonald (Litigation guardian of) v. Goertz, 2008 BCSC 394, aff’d 2009 BCCA 358).

[56]      In my view, the risk Mr. Vandendorpel created when he chose to walk and then run across Sooke Road, into the path of Mr. Evoy’s on-coming vehicle created a much more significant risk than Mr. Evoy driving at a speed marginally above the speed limit on a dark morning with a wet roadway. Moreover, I find the departure from the standard of care expected of Mr. Vandendorpel as a pedestrian was much more pronounced than the departure of Mr. Evoy from his duty of care as a driver of a motor vehicle.

Motorist Found Faultless For Crash Despite Entering Intersection on Yellow Light

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing fault for an intersection crash involving a left turning vehicle and a vehicle driving straight through the intersection on a yellow light.
In today’s case (Krist v. Bock) the Plaintiff entered an intersection on a green light intending to turn left.  The Plaintiff committed to the intersection but oncoming traffic was too heavy so the Plaintiff had to wait.  After the light turned yellow the plaintiff proceeded with his turn but was then struck by the Defendant’s vehicle.
The Plaintiff alleged the Defendant was to blame for entering the intersection on a yellow.  Mr. Justice Bowden disagreed and dismissed the Plaintiff’s claim finding him fully at fault for the crash.  In reaching this decision the Court provided the following reasons:

[17]         The defendant was aware of the plaintiff’s vehicle in the left-hand turn lane when he faced the yellow light and continued into the intersection without reducing his speed because of his concern that his vehicle would skid into the intersection. The fact that the defendant had noticed the plaintiff’s vehicle in the left turn lane before he initiated a left turn and did not reduce the speed of his vehicle does not constitute negligence. The presence of the plaintiff’s vehicle in the left turn lane did not cast a duty on the defendant to take extra care and he was entitled to presume that the plaintiff would not initiate a turn until his vehicle was through the intersection. The defendant was entitled to assume that the plaintiff would comply with the rules of the road and not commence a left turn until it was safe to do so.

[18]         I acknowledge that the defendant was warned by the police for entering the intersection in the face of a yellow light however I have accepted his evidence that because of the wet pavement, he could not have stopped safely and thus complied with s. 128 of the MVA.

[19]         In my view, the plaintiff proceeded to turn left when the defendant’s vehicle was in the intersection or so close as to constitute an immediate hazard. The evidence does not indicate that the plaintiff took any care to determine if a left turn could be made safely. I do not accept the plaintiff’s evidence that he commenced his left turn when the traffic light was red. I accept the defendant’s evidence that the light had turned yellow when he entered the intersection and at that point in time the plaintiff had initiated a left turn.

[20]         In his examination for discovery the plaintiff said that he did not see the defendant’s vehicle until it was 20 feet away. I do not accept his explanation that the defendant’s vehicle was in the curb lane and changed into the center lane just before the accident occurred. He did not see the defendant’s vehicle make such a lane change and just surmised that was what he had done. The plaintiff did not mention this suggested lane change by the defendant in his statement to ICBC on January 3, 2013 nor in his examination for discovery on January 29, 2016.

[21]         In my view, the plaintiff should have seen the defendant’s vehicle as it was entering the intersection but failed to do so. I reject his explanation that the defendant’s vehicle had come from the curb lane into the center lane just before the accident occurred.

[22]         I accept the defendant’s evidence that when the traffic light turned yellow in the rainy conditions he could not stop safely without sliding in the intersection. He gave his evidence in a straight-forward and honest manner. There is no contradictory evidence. Accordingly, the defendant met the standard of care provided in s. 128(1) of the MVA.

[23]         In my view, when the defendant entered the intersection he was the dominant driver and the plaintiff was in the servient position. I find that when the defendant driver entered the intersection, he did not have a sufficient opportunity to avoid the collision with the plaintiff’s vehicle after the plaintiff had initiated a left turn disregarding his statutory duty to yield to the defendant whose vehicle posed an immediate hazard.

Security Guard Run Over By Fleeing Thief Found Not Contributorily Negligent

Reasons for judgement were published this week by the BC Supreme Court, New Westminster Registry, assessing fault for a crash involving an unidentified motorist.
In the recent case (MacKenzie v. John Doe) the Plaintiff was working as a security guard when he noticed a shoplifter.  He pursued the shoplifter to his vehicle.  When confronted the shoplifter ran the plaintiff over and injured him.  The collision was described as follows:

[17]        The plaintiff described what happened.  When the individual was further along the sidewalk, the plaintiff observed him getting into the driver side of a parked vehicle.  The plaintiff approached the vehicle’s passenger side and opened the door, saying “store security”.  He asked for the merchandise back.  The individual responded, “fuck you”, and then put the key in the ignition, started the ignition, and immediately started reversing the vehicle into the parking lot.  

[18]        At that time, the door of the vehicle hit the plaintiff in the chest, causing him to lose his balance.  His feet slid under the passenger-side door.  The plaintiff hung onto the passenger-side door as the individual reversed his vehicle out of the parking spot.  He asked the individual to stop the vehicle but the individual did not do so and then the plaintiff let go.  When he let go, the passenger-side door hit him.  As a consequence, he lost his footing, fell and struck the back of his head on the concrete, at which point he believed his legs went under the vehicle.  The individual continued driving in reverse gear all the way up a ramp where he then spun around and drove away at quick speed, quicker than the speed one would normally go when reversing a vehicle, the plaintiff testified.

[19]        The plaintiff attempted to get up.  However, a bystander said “I am not sure if you realize what just happened to you.  You should probably stay down”.  So he did.  First aid arrived shortly after and then the paramedics.

The shoplifter remained unidentified and the Plaintiff applied for statutory compensation from ICBC for the hit and run collision.

ICBC argued that the Plaintiff was partly at fault for the incident.  The Court disagreed and in finding the Plaintiff acted reasonably in pursuing the thief Madam Justice Maisonville provided the following reasons:

[88]        I find that, in this case, the vehicle had not been started when the plaintiff approached it.  I find that the car key was not in the ignition when the plaintiff opened the vehicle’s passenger-side door and, as such, the plaintiff could not reasonably anticipate carelessness or even the events as they transpired, which involved flagrant and deliberately reckless conduct…

[93]        Consequently, where the defendant’s negligence rises to a level of flagrant and deliberate recklessness, the plaintiff cannot be found to be contributorily negligent, as reprehensible behaviour from a defendant is not reasonably foreseeable. 

[94]        Another aspect of the case before me negating contributory negligence is the fact that the plaintiff was not in violation of his company’s policy, and I cite Lewis v. Todd, [1980] 2 S.C.R. 694 in support.  In Lewis, it was dark out, and an officer wearing a dark uniform was struck by a car and killed while on duty.  The trial judge found no contributory negligence.  On appeal, the Ontario Court of Appeal found the officer to be 25% negligent.  However, on further appeal to the Supreme Court of Canada, that decision was reversed.  At page 700, the Court stated:

The Court of Appeal found that Constable Lewis should not have continued unassisted with his investigation on the road. To do so was negligent. The evidence was, however, that Constable Lewis did not depart from police practice. The trial judge did not misapprehend the evidence, or ignore evidence which would have suggested that police standards required more than one officer at an accident. There was no evidence, then, to support the conclusion that Constable Lewis needed assistance and that he was negligent in not asking for it. …

[95]        Given that there were circumstances which should have alerted other drivers to the presence of police officers on the highway, the court in Lewis held that there was no negligence on the part of the officer, including on the basis that he failed to keep a proper lookout.  

[96]        Here, in like circumstances, the defendant was well aware of the presence of the plaintiff, who asked him to stop, yet chose to ignore him and instead respond with a terse, profane answer and reverse the vehicle.  I find that the plaintiff could not have reasonably foreseen what occurred, that the defendant was flagrant and deliberately reckless, and that the plaintiff is in no way contributorily negligent for the accident which occurred.

BC Court of Appeal – Losing Control on Shoulder of Road is Prima Facie Negligence

Reasons for judgement were released today by the BC Court of Appeal overturning a trial judgement as being ‘clearly wrong’ and finding that when a motorist loses control on the shoulder of a road a prima facie case of negligence is made out.
In today’s case (Gaebel v. Lipka) the Plaintiff was a passenger in a vehicle operated by the Defendant.  The Defendant drifted on to the shoulder of the road then “lost control, the vehicle fishtailed, crossed the road to the opposite side, travelled up onto an embankment, launched into the air and rolled over three times before landing.”.
The claim was dismissed at trial with a finding the Defendant was not negligent.  The Court of Appeal overturned this finding and provided the following reasons:

[29]         In my view driving onto the shoulder and losing control of the vehicle gives rise to a prima facie inference of negligence. On this evidence, the only reasonable inference that can be drawn was that Mr. Lipka drove on the shoulder either because of a lack of attention or because he approached the curve too fast, or both.

[30]         Once a prima facie case of negligence is proven, the onus shifts to the defendant to rebut the inference through the defence of explanation. A defence of explanation is an explanation of how the accident may have happened without the defendant’s negligence: Singleton v. Morris, 2010 BCCA 48 at para. 38.

[31]         In this case, Mr. Lipka has advanced no explanation as to how the accident may have occurred absent negligence on his part. The lack of an explanation distinguishes this case from cases such as Singleton and Nason, in which the trial judges found the prima facie case of negligence had been rebutted.

[32]         In the result, I find the respondents are wholly liable for Mr. Gaebel’s damages.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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