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:
Reasons for judgement were released today addressing whether a pedestrian struck in a cross walk bared any responsibility for their collision.
In today’ case (Gulati v. Chan) the Plaintiff entered a crosswalk when the Defendant motorist coasted through a stop sign and struck the Plaintiff. The Defendant admitted partial fault but argued the Plaintiff should shoulder 10-20% of the blame for failing “to avoid his on-coming vehicle which, he maintains, was a visible and foreseeable risk to her.” In rejecting this argument and finding the Defendant fully at fault Mr. Justice Gaul provided the following reasons:
 Mrs. Gulati says she looked to her right and left before entering the crosswalk. At that time, she did not see any vehicular traffic coming in her direction. When she was approximately half way across the crosswalk she saw Mr. Chan’s vehicle approaching the nearby intersection that was controlled by stop signs. According to Mrs. Gulati, the vehicle was approximately 4 to 5 car lengths away from her when she first saw it. To Mrs. Gulati’s surprise, the vehicle did not stop at the stop sign; instead it turned left and struck her while she was in the crosswalk.
 Mr. Leverett was standing at the southern end of the crosswalk, directly in front of the stop sign for the intersection. He saw Mrs. Gulati exit the Mall and stand at the northern end of the crosswalk. He saw her look both ways and then proceed into the crosswalk. According to Mr. Leverett, there was no vehicular traffic in the vicinity when Mrs. Gulati began to cross the road. Mr. Leverett saw Mr. Chan’s vehicle approach the stop sign. It appeared to Mr. Leverett that Mr. Chan was not paying attention to what he was doing, because his vehicle coasted through the stop sign. Mr. Chan’s vehicle then accelerated and collided with Mrs. Gulati who was still in the crosswalk.
 Constable Lorne Smith of the Surrey RCMP attended at the scene of the Accident shortly after it occurred. While he was there, he spoke with Mr. Chan. According to Constable Smith, Mr. Chan said he had been leaving the Mall’s parkade, had not seen Mrs. Gulati in the crosswalk and had collided with her when she suddenly appeared in front of his vehicle. The officer issued Mr. Chan a violation ticket alleging that he had been driving without due care and attention and had failed to yield to a pedestrian contrary to the Motor Vehicle Act, R.S.B.C. 1996, c. 318 (the “MVA”). Mr. Chan did not dispute the violation ticket…
9] I accept the evidence of Mrs. Gulati and Mr. Leverett with respect to how the Accident occurred. In particular I am satisfied that Mr. Chan was not paying attention when he was driving and that he did not bring his vehicle to a stop when he should have. Instead, without any notice or warning to Mrs. Gulati who was legally crossing the road, Mr. Chan proceeded through the stop sign and turned left, leaving Mrs. Gulati with no time to react and avoid the collision. It was not unreasonable for Mrs. Gulati to believe that Mr. Chan’s vehicle would stop at the stop sign and it cannot be said that a reasonable person would have anticipated his decision to breach the rules of the road in the manner that he did.
 In my opinion, Mr. Chan is 100 percent liable for the Accident.
While Pedestrians are allowed to cross streets in a crosswalk the right is not absolute. One limitation in section 179 of the BC Motor Vehicle Act addresses pedestrians walking in front of a moving vehicle “that is so close it is impracticable for the driver to yield the right of way“. In these circumstances a Pedestrian could be faulted for a resulting collision even if they would otherwise have the right of way. Reasons for judgement were released yesterday by the BC Supreme Court, Nelson Registry, considering this obligation in a personal injury lawsuit.
In yesterday’s case (Cairney v. Miller) the Plaintiff was injured in a 2009 collision. The Plaintiff was crossing in a marked cross-walk in Nelson, BC, when he was struck by the Defendant. As the Defendant was driving she “slowed down to look for a parking spot when she suddenly felt a bump on the left side of her car.” The Defendant failed to see the Plaintiff and the Court ultimately found the Defendant at fault. The Defendant went on to argue that the Plaintiff should be held partially at fault because he should have realized she was not yielding the right of way. Mr. Justice McEwan rejected this argument and provided the following reasons: Given Mr. Thompson’s evidence, which I accept, the plaintiff was visible in the crosswalk when the defendant’s vehicle crested the hill and entered the intersection. I cannot accept that poor lighting or dark clothing had anything to do with what happened and must infer that the defendant was not paying sufficient attention in the circumstances. The plaintiff did nothing sudden or unusual to cause the collision. He was simply established in the crosswalk while the defendant’s car was approaching.
Mr. Thompson’s evidence differs from that of both the plaintiff and the defendant with respect to speed. Witnesses often differ on the characterization of such matters, and both the plaintiff and the defendant agree that she was proceeding slowly, a factor in the plaintiff’s calculation that he believed the defendant was going to stop.
This is difficult to reconcile with Mr. Thompson’s immediate reaction that there was going to be a collision between the plaintiff and the defendant’s vehicle. The effect of Mr. Thompson’s evidence is that, to him, the defendant’s vehicle appeared to be an immediate and obvious hazard to the plaintiff, because it was going too fast.
I have carefully considered whether the plaintiff’s failure to apprehend that the defendant was not going to yield to him, engaged an obligation to avoid injury to himself that modified his right to the right of way (See Feng v. Graham (1988), 25 B.C.L.R. (2d) 116 (C.A.), cited in Dionne at para. 23 above).
The evidence, taken as a whole, however, suggests that the plaintiff assumed that the defendant would stop in circumstances when it was reasonable to expect she would see him. It is often possible to say in retrospect that had a party paid more attention, he or she might have avoided the collision. In the circumstances here, I think this would impose a standard of more than usual diligence and watchfulness on the plaintiff at odds with his right to be in the crosswalk and the presumption that the plaintiff would abide by the rules of the road.
Accordingly, I find the defendant fully liable for the collision.
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: 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….
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.
 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.
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.
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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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