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
 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.
 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.
 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.
 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.