Tag: Ormiston v. ICBC

BC Court of Appeal Sends Strong Message To Cyclists Who Pass Vehicles on the Right

Reasons for judgement were released today by the BC Court of Appeal addressing the practice of cyclists passing vehicles on the right finding, absent limited circumstances, that it is negligent to do so.
In today’s case (Ormiston v. ICBC) the Plaintiff was involved in a 2009 cycling collision. As he proceeded down hill a vehicle ahead of him in his lane of travel “was almost stopped at the centre line”. The Plaintiff had room on the right side of the vehicle and attempted to pass. As the Plaintiff did so the motorist veered to the right causing the Plaintiff to lose control.
The motorist left the scene and remained unidentified. The reason for the sudden veering motion remained unknown.  The Plaintiff sued ICBC pursuant to section 24 of the Insurance (Vehicle) Act. ICBC admitted that the collision occurred and involved an unidentified motorist, however, ICBC argued the Plaintiff was fully responsible.
At trial both the cyclist and motorist were found partly to blame.  The BC Court of Appeal overturned this result finding the cyclist was full to blame for passing a vehicle on the right.  In reaching conclusion the Court provided the following reasons:
[23]         Under the Motor Vehicle Act a cyclist is required to ride as near as practicable to the right side of the highway (s. 183(2)(c)).  “Highway” is broadly defined to include any right of way designed to be used by the public for the passage of vehicles (s. 1).  That, it is said, includes the shoulder such that sometimes cyclists must ride on it to be as near as practicable to the right side of the highway.  Vehicles are required to travel on the right-hand half of the roadway (s. 150(1)).  “Roadway” is defined as the improved portion of a highway designed for use by vehicular traffic but does not include any shoulder (s. 119).  Vehicles cannot travel on the shoulder.
[24]         The contention is that because cyclists must sometimes ride on the shoulder while vehicles cannot travel on that part of a highway, the shoulder must, where practicable, be a lane for cyclists within the meaning of s. 158(1)(b) such that, when riding on the shoulder, they are able to take advantage of the exception it provides and pass vehicles on a roadway on their right.  It does appear that what may be practicable could vary considerably having regard for the differing widths of the shoulder over any given stretch of a highway, or from one highway to the next, as well as the condition of the surface.  One cyclist may have a much different view than another as to what is practicable in any given instance.
[25]         While I doubt the legislative intention was to create by this somewhat convoluted statutory route what would be thousands of miles of unmarked and ill-defined bicycle lanes across the province, I do not consider s. 158 (1)(b) constitutes an applicable exception to the prohibition against passing on the right in any event.  As defined, the exception applies to a laned roadway being a roadway divided into marked lanes for vehicles travelling in the same direction.  The markings divide the roadway; the lanes marked are on the roadway.  A roadway does not include the shoulder.  The shoulder could not be an unobstructed lane on a laned roadway.  The “laned roadway” exception has, as the judge said, no application here.  It does not permit cyclists to pass vehicles on the right by riding on the shoulder.  It must follow the driver of the vehicle would have had no reason to expect a cyclist like Ormiston would attempt to pass on the right by riding on the shoulder.  That must be particularly so here when the shoulder was not fit for a bicycle because it was strewn with gravel and Ormiston was riding as far to the right of the highway as he considered practicable.
[26]         Ormiston did a foolish thing.  Rather than wait until the driver’s intentions were clear, he decided to do what the Motor Vehicle Act prohibits – pass on the right.  He decided to take a chance and he was injured.  Had he waited, even a few seconds, there would of course have been no accident because the vehicle drove on after it had moved to the right of its lane. 
[27]         I conclude Dixon Ormiston was the sole author of his misfortune.  I do not consider there to be any basis in law to hold the driver of the vehicle liable in negligence.

Cyclist Assessed 30% Fault For Passing Slow Moving Vehicle on the Right

(Update July 8, 2014 – the below decision was overturned on Appeal with the BC Court of Appeal finding there was no evidence to prove negligence on the motorists part)
Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, dealing with the issue of fault following a collision caused by an unidentified motorist.
In last week’s case (Orminston v. ICBC) the Plaintiff was involved in a 2009 cycling collision. As he proceeded down hill a vehicle ahead of him in his lane of travel “was almost stopped at the centre line”. The Plaintiff had room on the right side of the vehicle and attempted to pass. As the Plaintiff did so the motorist veered to the right causing the Plaintiff to lose control.
The motorist left the scene and remained unidentified. The Plaintiff sued ICBC pursuant to section 24 of the Insurance (Vehicle) Act. ICBC admitted that the collision occurred and involved an unidentified motorist, however, ICBC argued the Plaintiff was fully responsible.
Ultimately Mr. Justice McKinnon found both parties at fault. In assessing 30% of the blame to the Plaintiff the Court provided the following comments:

[26]Section 158(1) limits the ability of a “motorist” to pass on the right. It is permissible only in three specific instances, none of which existed at bar. Even when permitted, the move cannot be made if it would be “unsafe” to do so and if the movement caused the vehicle to “drive off the roadway”. “Roadway” is defined in section 119(1) and does not include the shoulder. Section 158(2) stipulates that a motorist must not overtake or pass if the movement cannot be made safely, or if it involves driving off the roadway. The latter, says defence, makes it clear that the plaintiff was not entitled to use the shoulder, at any point, or for any purpose, in attempting to pass. ..

[36]This unidentified vehicle was not near any intersection nor any roadway that might lead a cyclist to believe there was a possibility of a turn into his line of travel. It was descending a steep hill but for unknown reasons came to almost a complete stop at the centre of the road. In my view the facts at bar are not at all similar to those cited in Janzen

[41]I accept that this unidentified driver was almost stopped at the centre line when he/she made a sudden veering motion that took the vehicle over the fog line onto the shoulder. Such an action, at the very least, constitutes driving without reasonable consideration for others. Clearly Mr. Ormiston also bears some responsibility for this collision, given the provisions of the Motor Vehicle Act to which I have referred. It remains to ascertain the extent to which each is liable.

[42]In Salaam v. Abramovic, 2010 BCCA 212, the British Columbia Court of Appeal offered the following comment about assessing statutory obligations in respect to liability:

[18] While the statutory provisions provide guidelines for assessing fault in motor vehicle accident cases, they do not, alone, provide a complete legal framework

[21] …In the end, a court must determine whether, and to what extent, each of the players in an accident met their common law duties of care to other users of the road. In making that determination, a court will be informed by the rules of the road, but those rules do not eliminate the need to consider the reasonableness of the actions of the parties. This is both because the rules of the road cannot comprehensively cover all possible scenarios, and because users of the road are expected to exercise reasonable care, even when others have failed to respect their right of way. While s. 175 of the Motor Vehicle Act and other rules of the road are important in determining whether the standard of care was met, they are not the exclusive measures of that standard.

[43]In Shinkaruk v. Crouch, 2011 BCSC 1762, Saunders J. followed these general statements of principle, noting:

[18] A breach of the Motor Vehicle Act is not in itself determinative of liability; all of the surrounding circumstances may be taken into account.

[44]In my respectful view, given the provisions of the Negligence Act, R.S.B.C. 1996, c. 333 and the facts that I have found, the defendants bear the greater liability. I find them 70% responsible for the losses claimed. The plaintiff will be assessed 30%.

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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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