Tag: MacLaren v. Kucharek

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


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.

ICBC Tort Claims and Net Wage Loss

If you have been injured in a BC motor vehicle accident and suffered a wage loss you may have had ICBC tell you that they can only pay you your ‘net wage loss’ in your tort claim.
I have often often seen ICBC calculate a person’s gross wage loss and deduct 25% to account for income taxes prior to paying the past wage loss.  Is this proper?  The answer is sometimes.  It depends on the amnount of your past wage loss award.
Great reasons for judgement were released today by Madam Justice Boyd of the BC Supreme Court.  In this case the court awarded $8,750.36 for past wage loss.  ICBC then tried to deduct income taxes on this amount prior to paying it.  Madame Justice Boyd summarized the applicable law very well and concluded that the leading BC Supreme Court dealing with this issue(Hudniuk v. Warkentin) applies, and using its principles
the Plaintiff’s net income loss should be calculated by deducting the necessary income tax from the agreed gross income loss of $8,750.36.  Further, as Hudniuk requires, for the purposes of tax calculations, this formula assumes that this amount is the only income earned by the Plaintiff in 2008.  Since the first day of trial was May 12, 2008, the tax rates in effect of the previous calendar year, as or December 31, 2007, are applicable
The court then noted that at the time personal income under $9,027 was exempt from taxation meaning the Plaintiff was entitled to the whole amount of past wage loss.
So, according to this judgement, if the past income loss you are entitled to in a BC ICBC tort claim is less than the personal income amount that is exempt from taxation you are entitled to the whole of your past wage loss.
I have heard through the grape-vine that the BC Court of Appeal will soon further clarify this area of the law, but until that time today’s case sets a great precedent for Plaintiff’s with less than $9,000 in past wage loss.
 

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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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