Tag: bicycle accident

Cyclist Fully at Fault For Collission Following Careless Lane Change; No Adverse Inference From Defendant Failing to Tesitfy

Interesting reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dismissing a plaintiff’s claim following a bicycle/vehicle collision.
In last week’s case (Miles v. Kumar) the Plaintiff was cycling Eastbound along Grandview Highway in Vancouver when he moved from the right into the left lane in preparation for a left turn at an upcoming intersection.  The Defendant was travelling in this lane and a collision occurred shortly after the lane change.  Mr. Justice Bernard found the plaintiff fully at fault an in doing so reached the following conclusions:
[62]         In summary, with due regard for all the foregoing, I make the following determinations: (a) that as Ms Kumar travelled in the left lane to the point of the collision, she enjoyed the right of way; (b) that the evidence does not reasonably support a finding that Ms Kumar was, at the time, driving without due care and attention, or without reasonable consideration for other persons using the highway, or at a speed that was excessive to the conditions; (c) that when Mr. Miles entered the left lane in front of Ms Kumar his bicycle was servient to Ms Kumar’s car; and, (d) that when Mr. Miles entered the left lane he did so in breach of his statutory duties pursuant to ss. 151(a) and 151(c) of the MV Act.
[63]         In addition to the foregoing, I am also satisfied that there is no evidence upon which I could reasonably conclude: (a) that Ms Kumar ought to have known that Mr. Miles would disregard her right of way; or, (b) that there was sufficient opportunity for a reasonably careful and skilled driver in the position of Ms Kumar to avoid colliding with Mr. Miles (see Walker v. Brownlee, supra).
Interestingly the Defendant never testified at trial despite fault being disputed.   The Court was asked to draw an adverse inference but Mr. Justice Bernard refused to do so. The Court provided the following comments on this issue:
[66]         The plaintiff has submitted that the Court should draw an inference adverse to the defendants because Ms Kumar – “the only person who could have provided evidence as to her position, speed, attentiveness, driving experience, familiarity with the road, as to when she first saw Mr. Miles, and as to why she made no attempt to avoid a collision” – who had been scheduled to testify, did not do so, and without explanation. In support of this position, the plaintiff cites Bronson v. Hewitt, 2010 BCSC 169. In Bronson, the court drew an adverse inference against the defendants because one of the defendants did not testify. The court found that this defence decision deprived the court of the best evidence of conversations critical to deciding the case.
[67]         The defendants submits that Bronson is distinguishable from the case at bar. In Bronson, a positive defence was advanced; one which required proof of the content of critical conversations between the two defendants. The court observed that evaluating the defence advanced obliged the court to consider the credibility of both defendants, and the failure to call one defendant deprived the court of the best evidence of the conversations and the opportunity to assess credibility – a matter very much in issue.
[68]         In the case at bar, the defendants note that a positive defence has not been advanced. Here, the defendants simply rely upon the onus the plaintiff bears to prove its case. The defendants’ position is that the plaintiff has failed to prove the negligence alleged. In support they cite McIlvenna v. Viebig, [2012] B.C.J. No. 292, 2012 BCSC 218. In reviewing the law on adverse inferences, the court in McIlvenna stated:
[70]      The law with respect to adverse inferences in civil cases when witnesses are not called is summarized in Halsbury’s Laws of Canada [Civil Procedure II, 1st ed (Markham: LexisNexis, 2008) at para 228; Evidence, 1st ed (Markham: LexisNexis 2010), at para 14] under both Civil Procedure, and Evidence headings, respectively, as follows:
It is highly unusual for a party not to testify in a civil trial. The court may draw an adverse inference from the fact that a party fails to testify, provided that it is reasonable in the circumstances to do so. In order for an adverse inference to be drawn, there must be a dispute as to those facts concerning which the party would be competent to testify. Furthermore, if the plaintiff has failed to establish a prima facie case against the defendant, no adverse inference will be drawn should the defendant not testify. Nor is a party required to testify to rebut allegations that are plainly absurd. More generally, an adverse inference will not be drawn where the effect of drawing such an inference is to reverse the onus of proof.

There is no obligation on any party to call any particular witnesses. However, the trier of fact may draw an adverse inference from a party’s failure to call a witness whose testimony would be expected to assist the party’s case.
[69]         Having regard to the foregoing, I agree with the defendants that the effect of drawing an adverse inference against Ms Kumar would be to reverse the onus of proof; moreover, Ms Kumar was extensively cross-examined at her Examination for Discovery and the plaintiff chose to “read in” many of Ms Kumar’s answers as evidence in the plaintiff’s case.
[70]          I am satisfied that there is a critical distinction between the case at bar and that in Bronson. Here, the defendants have not advanced a positive defence and then elected not to testify in support of it. In such circumstances, the defendants are entitled to rest upon the plaintiff’s failure to prove his case. Drawing an adverse inference against the defendants for the failure to present a case with Ms Kumar as a witness would undermine the fundamental legal premise that it is the party alleging the wrongdoing who bears the onus of proof.

Cyclist 100% At Fault for Collision with Concrete Mixer Truck

Reasons for judgment were released today finding a Plaintiff cyclist 100% at fault for a 2004 collision between his bicycle and a concrete mixer truck.
The collision was significant and resulted in severe injuries. In order for these to be compensable someone needs to be at fault for them. That’s what this trial focused on.
Here the Plaintiff was driving on the shoulder of the roadway approaching an intersection. The concrete mixer truck was attempting a right hand turn and the Plaintiff collided with the truck.
The court made some useful comments about the duties of cyclists who choose to drive on the shoulder of the road rather than on the roadway itself, namely that:

[55] The evidence clearly establishes that Mr. Sivasubramaniam failed to meet the standard of care required of a driver in the circumstances, and that he was negligent. He was driving on the shoulder of the roadway, rather than in the lane marked for vehicle travel. I accept that it would also have been hazardous for Mr. Sivasubramaniam to ride in a driving lane on such a busy street, but having chosen to ride in an area that is not designated for vehicles; and to pass vehicles on the right hand side while travelling in that area, Mr. Sivasubramaniam had a duty to take extra care to ensure that he was visible to drivers, and that he took precautions. This was particularly so as he approached a busy intersection. Options available to him included signalling and moving into the driving lane to his left when it was safe to do so, and proceeding through the intersection in that driving lane; or stopping and dismounting from his bicycle and crossing the intersection in the pedestrian crosswalk and then remounting his vehicle on the other side of Blue Mountain Street.

[56] At the very least, he ought to have slowed his bicycle and to have checked carefully for indications that vehicles were intending to turn right from Lougheed Highway onto Blue Mountain Street, before proceeding across the intersection to the right of traffic in the driving lanes.

[57] Instead of driving in a cautious fashion, I conclude that Mr. Sivasubramaniam was accelerating as he approached the intersection, and, as I have said earlier, steered to the right with the intention of either riding in the cross walk – a prohibited act – or riding near it.

The court summarized its findings at pargaraph 67 of the judgement concluding that the cyclist was 100% at fault stating that:
The evidence compels me to conclude that for some unknown reason, Mr. Sivasubramaniam simply failed to note the fact that Mr. Franz’s vehicle not only was intending to turn right, but had commenced that turn, and he failed to slow or stop his bicycle until it was too late to do so. Mr. Sivasubramaniam assumed, incorrectly, that the concrete mixer truck would proceed straight through the intersection. He made this assumption despite his knowledge that vehicles frequently do turn right at this intersection, and despite the signal flashing in several locations on the concrete mixer truck. Rather than slowing or stopping his bicycle as he approached the intersection, he was, I conclude, accelerating by continuing to pedal on the downward slope.

Cyclist 75% At Fault for Intersection Crash for "Riding With No Reflection"

 
NOTE: This case was overtunred on appeal on February 19, 2009, see my blog post of February 19 to read about this.
Reasons for judgement were released yesterday by the BC Supreme Court determining fault for a 2004 motor vehicle collision which occurred in Vancouver, BC involving a BMW and a bicyclist.
The collision happened at the intersetion of Main Street and East 2nd Avenue in Vancouver, BC.  The Plaintiff cyclist was attempting to go through the intersection when the Defendant motorist turned left and collided with him.  The light was green and the cyclist did enter the intersection “in accordance with traffic signals” when the Defendant turned into him (in other words, on a green light).  The impact was significant as the Plaintiff “hit the passenger window of the car with enough force to smash the glass and he suffered personal injuries“. 
Who was at fault for this intersection crash was the issue to be decided at trial.  The trial proceeded by way of ‘summary trial’ pursuant to Rule 18-A of the BC Supreme Court Rules.  For those not familiar with ‘summary trials’ they are commonly referred to as ‘paper-trials’ because no witnesses testify in court, rather the lawyers present their cases through sworn affidavit evidence.  There has been much criticism of this rule over the years and BC personal injury lawyers seldom use this rule to advance ICBC claims to trial.
This case is interesting for Madam Justice Griffin’s analysis in determining fault.  The 5 main factors she considered in reaching her conclusion were
1.  The speed of the car
2.  The speed of the bicycle
3.  The light conditions
4.  The location of the bicyle whent he car began its left turn
5.  The response time of the bicycle rider
The key findings of fact made at trial were that “the Plaintiff was not speeding and was properly riding his bicycle in the correct lane, the curb lane, in accordance with the traffic signals.  It is undisputed that (the bicyclist) was in breach of the Motor Vehicle Act by failing to have a headlamp or reflectors on his bicycle….Given that (the bicyclist) had no headlamp or reflectors on his bicycle, (he) was also negligent in wearing dark clothing insread of bright and reflective clothing…(he) had no opportunity to avoid the collision.  Even though the BMW was clearly poised to mnake a left turn and had its left turn signal activated, there was no reason for (him) to expect that the BMW would turn in front of him.  He would have seen that it had given way to other traffic.”
Madam Justice Griffin concluded that “the bicyclist presented an immediate hazard when the BMW began to turn the vehicle to the left…..(the driver of the BMW) should have considered (the bicylcist) to be an immediate hazard and should not have proceeded with the turn until (the bicyclist) was safely through the intersection.  As such (the driver of the BMW) was negligent.”
When both parties are at fault for a collision BC courts must determine the degrees of fault as between them.  This is required by the BC Negligence Act.  Madam Justice Griffin ruled that the Plaintiff was 75% at fault for the accident and the motorist was 25% at fault.  What this means is that the Plaintiff would only be entitled to recover 25% of the value of his injuries from ICBC in his tort claim.
In reaching this conclusion Madam Justice Griffen ruled that

[62]            The streets of Vancouver are shared by drivers and cyclists.  Those who use the streets must anticipate each other and the limitations inherent in each other’s response time and visibility. 

[63]            The plaintiff took a very big risk by riding his bicycle in the dark without any form of illumination or reflection.  He ought to have appreciated the difficulty that drivers of motor vehicles have in seeing fast-moving dark objects.  While he may have counted on the street lights to illuminate him, he was extremely careless and showed little concern for safety.

[64]            In deciding to make a left turn across the intersection, Mr. Schwartz should have appreciated the need to be vigilant for the potential of a cyclist approaching in the curb lane. 

[65]            In conclusion, I apportion fault for the accident 75% to the plaintiff and 25% to the defendant.

This case is a difficult precedent for any BC cyclist injured in a BC car crash who either fails to wear reflective clothing or fails to have a headlamp or reflectors on their bicylce.  It may be troubling to know that a cyclist can be found largely at fault for a collision even though he is “not speeding” “riding in the correct lane and in accordance with traffic signals”  who has “no opportunity to avoid the collision” and have “no reason to expect (a car )to turn in front of him“.
What is striking about this case is the degree of fault attibuted to the cyclist despite all the above findings.  This case serves as a stark reminder that if a cyclist fails to wear refelctive clothing or a headlamp, it may not only increase the risk of collision, but can drastically reduce the settlement value of an ICBC claim following a collision.
If you are an injured cyclist or pedestrian in a BC car crash and at the time did not have ‘any form of illumination’ you should be prepared to address the results of this case in your claim settlement negotiations with ICBC.
Do you have questions about this case, or about a BC crash involving a cyclist or pedestiran, or the issue of fault in an ICBC claim?  Are you looking for a free consultation with an ICBC claims lawyer?  If so, click here to arrange your free consultation with ICBC claims lawyer Erik Magraken.

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ERIK
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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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