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:
 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.
 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.
 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.
 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.
 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.
Tag: section 144 motor vehicle act
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.
Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, addressing fault for an intersection crash involving a left hand turning vehicle and a through driver.
In the recent case (Andrews v. Mainster) the parties were driving in opposite direction on 16th Avenue in Vancouver, BC. Ms. Andrews attempted to drive through the intersection. Of 16th and Fir. The light turned amber as Ms. Andrews was about one car length away. At the same time the motorist in the opposite lane of travel, who was already committed in the in the intersection, attempted to turn left resulting in collision. Both parties sued each other. In finding the turning motorist fully at fault Mr. Justice Masuhara provided the following reasons:
 It was dry and sunny at the time of the accident. Ms. Mainster had a clear and unobstructed view up West 16th to Granville Street. Ms. Andrews was not driving at an excessive speed on West 16th. Rather, she was driving at a normal speed approximately 45 km/h.
 I find that Ms. Mainster had proceeded into the intersection beyond the westside crosswalk and was waiting for traffic to pass through.
 More likely than not, Ms. Andrews was talking to Mr. Priolo just prior to the accident and that Ms. Andrews’ head was turned somewhat towards Mr. Priolo.
 I also find that Ms. Mainster turned left into the lane of oncoming traffic at the time the light for traffic on West 16th turned yellow. I also find at this same time Ms. Andrews’ car was within a car length of the intersection. Ms. Andrews was the dominant driver relative to Ms. Mainster.
 I find that Ms. Andrews’ vehicle constituted an “immediate hazard”. I find that Ms. Mainster did not “yield” and that she did not become the dominant driver.
 I find that the collision occurred in the intersection closer to the crosswalk on the west side of the intersection than in the middle of the intersection.
 I note that Ms. Mainster agreed that if she would have looked eastward that she should have been able to see the red Mazda and could not explain why she did not see it. Ms. Mainster said that it was just a brief moment between the time the front of her car had just moved to turn and the collision. The first time she saw the Mazda was at the time of the collision. The theory that Ms. Andrews must have been travelling excessively and if seen initially would have been at the eastern end of West 16th (closer to Granville) has not been made out. As a result, Ms. Mainster in not seeing the Andrews’ car was not paying proper attention to oncoming traffic. She did not meet the standard of care of a driver in her circumstances.
 Though, Ms. Andrews had her head somewhat turned toward Mr. Priolo in conversation as she was driving towards the intersection just before the collision, I do not find that she had taken her eyes off the road in front of her. I also do not find that Ms. Andrews had a duty to anticipate that Ms. Mainster would move into her lane when she did. In any event, the proximity of the two vehicles was such that when Ms. Mainster moved into the lane of oncoming traffic that Ms. Andrews would have been unable to take sufficient action to avoid the collision.
 In the circumstances, I find Ms. Mainster to be entirely liable for the accident.
Further to my recent article on this topic, cyclists passing a stopped vehicle on the right can be faulted for a resulting collision. This was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Kimber v. Wong) the Plaintiff cyclist was approaching a T intersection. A vehicle was stopped in his lane of travel leaving a gap for the Defendant who was driving in the opposite direction intending to make a left hand turn. The Cyclist passed the stopped vehicle on the right. At the sane time the Defendant turned resulting in collision.
Mr. Justice Pearlman found both parties equally to blame for the incident. In doing so the Court provided the following reasons:
 By passing to the right of the stopped eastbound vehicles, Mr. Kimber put himself in a position where he was not visible to a left-turning driver and where his own view of traffic turning across his path was blocked by the vehicles to his left.
 The plaintiff maintains that he was the dominant driver with the right of way as he approached the intersection and that under s. 174 of the Motor Vehicle Act, and that Ms. Wong, as the servient driver intending to turn left, was required to yield the right of way to him.
 As Madam Justice Ballance observed in Henry v. Bennett, 2011 BCSC 1254 at para. 73:
The dominant/servient driver analysis in Walker is predicated on the footing that the dominant driver has proceeded lawfully …
 Here, that analysis does not apply where Mr. Kimber was in breach of s. 158 of the Motor Vehicle Act and his common law duty to take reasonable care by keeping a proper lookout.
 However, that does not absolve Ms. Wong from liability. Ms. Wong made the left turn knowing cyclists using the oncoming lane often rode to the right of vehicles. She knew she had to keep a lookout and would have to yield to any oncoming traffic, including cyclists that presented an immediate hazard.
 She began her turn from a point where she was unable to see beyond the windshield of the vehicle stopped at the western entrance to the intersection. She made a continuous accelerating turn and did not stop or pause when she reached the point, just across the centre line, where she had a sight-line that would have enabled her to see the plaintiff. Had she inched forward or stopped when she had a clear sight-line, the plaintiff would have passed safely in front of her and the accident would have been avoided.
 I find that in heavy traffic and where her view of the eastbound lane was limited, Ms. Wong was negligent in failing to inch forward until she could see whether there was an obstacle to her safely completing her left-hand turn.
 I turn now to consider whether the plaintiff was contributorily negligent. As he passed stopped traffic on the right, Mr. Kimber ought to have been alert to the potential danger. He failed to keep a proper lookout before entering the intersection. He failed to take reasonable care for his own safety or that of other road users. Here, the plaintiff could have pulled into the line of slow moving or stopped vehicles and then taken his turn to pass through the intersection. Alternatively, the plaintiff ought to have been alert to the danger of passing stopped traffic at the intersection and ought to have brought his cycle to a stop to the right of the red Hyundai where he could observe traffic turning into the intersection. Had he done so the collision would have been avoided. I find that the plaintiff was also negligent and that his negligence was a cause of the accident.
 The apportionment of liability requires a consideration of the degree to which each party is at fault. Fault is apportioned on the basis of the nature and extent of the departure from the respective standards of care of each of the parties: Cempel v. Harrison Hot Springs,  B.C.J. No. 2853 at para. 24 (B.C.C.A.).
 Here, the plaintiff and the defendant were both familiar with the intersection where the accident occurred. For her part, the defendant was aware of the risk of cyclists approaching to the right of oncoming eastbound traffic but made her left turn without maintaining a proper lookout for a known risk.
 For his part, the plaintiff ought to have slowed down and entered the line of eastbound vehicles before passing through the intersection, or if he remained to the right of the line of stopped vehicles, he ought to have stopped alongside the stationary Hyundai before proceeding into the intersection, where he would have had an unobstructed view of the hazard ahead.
 In my view, the plaintiff and the defendant are equally at fault. I apportion liability 50 percent to each of the plaintiff and the defendant.
(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:
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. ..
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…
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.
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:
 While the statutory provisions provide guidelines for assessing fault in motor vehicle accident cases, they do not, alone, provide a complete legal framework
 …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.
In Shinkaruk v. Crouch, 2011 BCSC 1762, Saunders J. followed these general statements of principle, noting:
 A breach of the Motor Vehicle Act is not in itself determinative of liability; all of the surrounding circumstances may be taken into account.
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%.
As previously discussed, having the right of way does not automatically result in a driver being found faultless for a collision. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Matheson v. Fichten) the Plaintiff was a passenger in a Northbound vehicle in a designated left hand turn lane. The advance green arrow ran its course resulting in a green light for North and south bound traffic. The driver proceeded with his turn despite no longer having the advance green arrow.
At the same time the Defendant was driving Southbound in the curb lane. He was several car lengths back from the intersection when his light turned green. Other Southbound vehicles began to accelerate but then stopped realizing the Plaintiff vehicle was turning. The Defendant did not stop and entered the intersection when the collision occurred.
Despite having the right of way the Southbound Defendant was found 10% at fault for the collision. In coming to this assessment Madam Justice Smith provided the following reasons for judgement:
 I find that the Bahniwal vehicle was travelling at the speed limit of 50 kilometres per hour, or perhaps a bit less, as it proceeded up the southbound curb lane. I accept Mr. Kaler’s evidence that Mr. Bahniwal had slowed when the light ahead was red, but then resumed speed after the light turned green, two to three car lengths from the intersection. I find that the presence of vehicles in the two lanes to his left obscured Mr. Bahniwal’s view of what was occurring in the intersection except for the portion immediately in front of him. The vehicles in the two lanes to Mr. Bahniwal’s left began to move forward, but they stopped almost immediately. Mr. Bahniwal overtook those vehicles and passed them on the right, entering the intersection on a green light but without noting that the vehicles to his left had stopped, or taking any particular precaution before entering the intersection…
 I have found as fact that Mr. Bahniwal proceeded through the intersection on a green light. Accordingly, he had the right of way. His was the dominant vehicle; Mr. Fichten’s vehicle was in the servient position.
 The question in the end is whether either Mr. Fichten or Mr. Bahniwal or both, was in breach of the duty of care he owed to the plaintiff. I take into account the Motor Vehicle Act provisions as informing the requisite standard of care (Ryan v. Victoria,  1 S.C.R. 201 at para. 29).
 It is clear that Mr. Fichten was negligent in making his left turn when it was unsafe to do so after the light had changed, and in particular by crossing the curb lane of southbound traffic without checking that it was free of oncoming vehicles.
 Turning to Mr. Bahniwal, what is the duty of a driver who enters an intersection in the circumstances that faced him? He was in the curb lane, his view of the intersection was blocked by other vehicles, and those vehicles, having entered the intersection, had subsequently stopped…
 In my opinion, when the light facing Mr. Bahniwal turned green and the vehicles on his left proceeded forward and then stopped, Mr. Bahniwal had the opportunity to recognize, and should have recognized, that something had caused them to stop. His approach into the intersection should then have been tempered with caution, even though he had the light in his favour and had built up some momentum. He did not take that approach but, instead, proceeded at the speed limit into the intersection. His vehicle was in the dominant position, but he was not entitled to overlook a clear indication of a possible hazard in the fact that the vehicles to his left had stopped very soon after having begun to move. The traffic was not backed up in the southbound lanes, as it was inRobinson v. Wong, and the timing of the vehicles stopping was inexplicable from his vantage point. A careful driver would have reacted to the possibility that a left-turning vehicle, a pedestrian, or some other hazard was still in the intersection.
 I find that Mr. Bahniwal was in breach of his duty of care, and allocate liability 10% to him and 90% to Mr. Fichten.
I have previously detailed the potentially high financial consequences for civil breach of insurance. One way a motorist can be in breach relates to intoxication. If as a result of intoxication an individual is “incapable of proper control of the vehicle” then the motorist can be in breach of their insurance pursuant to Section 55(8)(a) of BC’s Insurance (Vehicle) Regulation. This means that the individual can lose all insurance coverage and be forced to pay all damages flowing from a collision.
This is a severe consequence and in appropriate circumstances a very deserving one. However, if ICBC is too quick to breach someone from their coverage they may be forced to pay damages in bad faith. Such a result was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (McDonald v. ICBC) the Plaintiff was involved in a 2007 collision. She was at fault for the crash. She consumed two to three glasses of wine prior to operating a vehicle. As she was driving she “turned the wrong way into an oncoming van” causing a collision and injuries to the other motorist.
The Plaintiff was issued a 24 hour roadside suspension and charged criminally with dangerous driving and alcohol related offences. Eventually the criminal charges were dropped and the Plaintiff plead guilty to careless driving pursuant to section 144 of BC’s Motor Vehicle Act.
The injured van driver brought a claim against the Plaintiff. ICBC eventually settled the claim for just over $182,000. ICBC held the Plaintiff in breach of her insurance arguing the collision occurred as a result of impairment and sought to collect the money from her.
The Plaintiff disputed ICBC’s allegations. She sued ICBC for a declaration that she is entitled to coverage and further for punitive damages. Madam Justice Ballance sided with the Plaintiff. The Court found that ICBC failed to prove that the collision occurred as a result of alcohol consumption and further ordered that ICBC pay the Plaintiff $75,000 for their ‘bad faith’ denial of coverage. In reaching this result Madam Justice Ballance provided the following reasons:
 An insurer does not have to have an iron-clad case in order to deny coverage. It is not expected to investigate a claim with the skill and forensic proficiency of a detective. Nor is it required to assess the collected information using the rigorous standards employed by a judge. The duty of good faith does not impose a standard of absolute liability in respect of an insurer’s wrong decision. The duty simply dictates that an insurer bring reasonable diligence, fairness, an appropriate level of skill, thoroughness and objectivity to the investigation, and the assessment of the collected information with respect to the coverage decision. My criticisms of the calibre of Ms. Baadsvik’s investigation and the shortcomings of her ultimate assessment should not be interpreted as suggesting that each individual omission or failing is, of itself, necessarily a violation of good faith and fair dealing. It is their cumulative effect that constitutes a breach of its duty of good faith.
 It is not possible to perform a fair and proper evaluation in the absence of a reasonably thorough underlying investigation. The latter precludes achievement of the former. And so it was, in the case at hand. Here, that deficiency was compounded by the other failings of Ms. Baadsvik’s evaluation of whether the plaintiff had been Incapacitated…
 ICBC engaged in settlement negotiations and concluded a settlement binding the plaintiff without appointing legal counsel on her behalf, all the while investigating her potential breach of contract. The plaintiff was never informed of the settlement discussions despite the fact that ICBC knew that the damages in the To Action were likely to be significant and that the plaintiff would potentially have to bear them personally. Indeed, after Ms. Baadsvik’s final discussion with Constable Wood on April 1, she was essentially on the brink of deciding that the plaintiff was in breach and that ICBC would not be indemnifying her. The nature and sequence of these events, all fully within ICBC’s control, was manifestly unfair.
 Ms. Baadsvik was asked whether, in making the decision that the plaintiff was in breach, any consideration was paid to the settlement of the To Action. She gave the unsatisfactory answer that she understood she had to wait until that settlement was concluded before she could advise the plaintiff about the breach and tell her how much money was involved.
 In my opinion, ICBC’s multiple failings in the investigation, assessment and breach decision that I have outlined, and its misconduct in relation to the To Action, respectively, contravened the duty of fair dealing and good faith owed to the plaintiff…
 This is an exceptional case. The nature of ICBC’s bad faith behaviour took different shapes throughout the time line. The overall handling and evaluation of the claim was overwhelmingly inadequate. ICBC also allowed its objectivity to be tainted by the fact that the claim indirectly involved the “very difficult” Mr. McDonald. While I recognize that the tainting of impartiality was only slight, it was nonetheless real and improper.
 In my opinion, ICBC’s conduct was harsh, high-handed and oppressive as those concepts have been developed in the jurisprudence, and marked a significant departure from the Court’s sense of decency and fair play. Some of the acts of bad faith were inadvertent and others were not and they persisted over a considerable period. The plaintiff was in a vulnerable position and suffered harm in consequence of ICBC’s misconduct, not all of which is tidily rectified by this Court confirming her right to be indemnified. ICBC would not be accountable for its bad faith in the absence of an award of punitive damages, which it can well afford. Such an award is justified to deter other insurers from engaging in similar types of misconduct, and to punish ICBC and condemn its breaches of duty…
 I declare that the plaintiff is entitled to indemnity from ICBC for all claims arising from the accident, including the To Action.
 I also award her the sum of $75,000 in punitive damages.
A reality at busy intersections is that drivers, after committing to an intersection on a green light, sometimes need to wait until the light turns red to complete their turn. If a crash occurs in these circumstances a driver can (depending on the specific facts of course) be found faultess for the collision. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such a scenario.
In this week’s case (Yanakami v. Whittey) the Plaintiff was attempting a left hand turn. She committed to the intersection. After her light turned red vehicles in two of the three oncoming lanes came to a stop. At this time she proceeded to complete her turn. The Defendant, who was travelling in the third oncoming lane, ran the red light and a collision occurred.
Mr. Justice Fitch found the Defendant fully at fault for the crash. In doing so the Court provided the following reasons:
 Against the background of this discussion, I make the following factual findings:
1. the plaintiff began her left turn immediately after the light for east and westbound traffic changed to red;
2. two other vehicles traveling east had come to a stop at the intersection in the curb and centre-line lanes;
3. the plaintiff was cognizant of, and attentive to, the considerations one would expect to be in the mind of a reasonably prudent driver including the colour of the traffic light, the location and speed of oncoming traffic, the location of Mr. Whittey’s vehicle at various points in time, including when the light turned red, and the potential for there to be pedestrians walking to the south in her intended path of travel;
4. Mr. Whittey had ample time to stop before the intersection and do so in safety, just as two other eastbound vehicles had done, when the light changed to yellow;
5. the plaintiff concluded, and was entitled in fact and in law to conclude, that the defendant’s vehicle did not present a hazard, that he had plenty of time stop (as other vehicles had done) and that it was safe for her to proceed with her left turn;
6. the defendant was not being attentive to the factors a reasonably prudent driver would have been attentive to before the collision, including the presence of the plaintiff’s vehicle in the westbound left turn lane immediately in front of him or the fact that a car had already come to a stop ahead of him in the eastbound centre-line lane. This conclusion is supported by the defendant’s own admission that he was not looking at the left turn lane for westbound traffic as he approached the intersection because it was not important for him to do so;
7. Mr. Whittey entered the intersection after the light turned red;
8. the plaintiff could not possibly have taken evasive action at that point to avoid the collision.
 Applying these facts to the applicable law, I am satisfied that this accident was caused solely by the negligent driving of the defendant, Mr. Whittey.
Although Section 183 of the Motor Vehicle Act prohibits a cyclist from riding on a sidewalk, motorists need to keep a lookout for this common breach of the law. Failure to do so can result in fault in a motor vehicle collision as was demonstrated in reasons for judgement released yesterday by the BC Supreme Court, Vancouver Registry.
In yesterday’s case (Deol v. Veach) the Plaintiff cyclist was travelling Southbound on a sidewalk on Scott Road in Surrey, BC. This was against the flow of traffic for his side of the street. At the same time the Defendant motorist was exiting a Safeway parking lot attempting to turn right onto Scott Road.
The Defendant failed to see the Plaintiff and a collision occurred. Both parties were found at fault with the Court placing the majority of the blame on the motorist for failing to keep a proper lookout. In reaching this finding Madam Justice Dardi provided the following reasons:
 A critical and uncontroverted fact in this case is that the defendant did not see the plaintiff when he looked to the right as he was approaching the Exitway. On his own admission his unobstructed view of the Sidewalk to the north was for some 200 feet. Moreover, after the defendant stopped just east of the unmarked crosswalk at the Exitway, and prior to executing his right turn, he did not look to the right again. The defendant was in clear violation of s. 144 of the MVA, which prohibits driving without due care and attention and without reasonable consideration for others. Although the plaintiff was riding in the direction facing traffic, the Exitway, which was bordered by a sidewalk on both sides, was precisely where a motorist should reasonably have expected to encounter another user of the road. Unlike the plaintiff in Ivanoff v. Bensmiller, 2002 BCCA 173, the plaintiff was not in an unexpected location. The defendant was well aware that both pedestrians and cyclists used the sidewalks on Scott Road.
 I find on the totality of the evidence that had the defendant acted in a reasonably prudent manner he would have seen the plaintiff. The plaintiff was there to be seen by the defendant. Had the defendant maintained a proper look-out there is an irresistible inference that the collision would have been avoided. I therefore conclude that the defendant failed to meet the standard of care of an ordinarily prudent driver required in the circumstances, and that his failure to do so was a cause of the accident. In the result I find the defendant negligent…
 I consider the defendant’s failure to keep a proper lookout, his failure to observe the plaintiff who was there to be seen, and his execution of a right turn while focussing to his left, more blameworthy than the lapse of care of the plaintiff, who, after stopping at the Exitway and observing the defendant’s vehicle come to a stop, failed to make eye contact with the defendant prior to proceeding through the Exitway.
 In the end I find that the defendant was substantially but not entirely to blame for the accident and therefore I attribute fault to both parties. I apportion liability 75% to the defendant and 25% to the plaintiff.
Useful reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, finding that it is an ‘abuse of process‘ pursuant to Rule 9-5(1)(d) for a Defendant to deny the issue of liability in a personal injury lawsuit after they have been convicted of careless driving as a result of the same collision.
In this week’s case (Ulmer v. Weidmann) the Plaintiff’s husband was killed when his motorcycle was struck by a vehicle operated by the Defendant. The Plaintiff sued for damages pursuant to the Family Compensation Act.
Following the collision the Defendant was charged with “driving without due care and attention” under section 144(1)(a) of the BC Motor Vehicle Act. He contested this charge but ultimately was found guilty following trial in the BC Provincial Court.
The Defendant then denied fault for the crash in the Wrongful Death lawsuit and claimed the Plaintiff was partly responsible. Mr. Justice Truscott rejected this argument and found the Defendant solely responsible for the fatal collision. The Court went further and found that while a party convicted under s. 144(1)(a) of the Motor Vehicle Act can argue an opposing motorist is partly to blame for a crash, it is an abuse of process for the convicted party to outright deny the issue of fault. The Court provided the following useful reasons:
 In my opinion the finding of driving without due care and attention in Provincial Court was akin to a finding of negligence against Mr. Weidmann, because his manner of driving was found to have departed from the standard of a reasonable man and he failed to avoid liability by proving he took all reasonable care in the circumstances.
 I agree with plaintiff’s counsel that it was an abuse of process for the defendants to deny full liability in their statement of defence as this constituted an attempt to re-litigate the findings of the Provincial Court that were necessary for Steven Weidmann’s conviction of driving without due care and attention. This was an attempt to undermine the integrity of the adjudicative process which is not to be allowed.
 I do not conclude however that the findings essential to Mr. Weidmann’s conviction in Provincial Court prevented Mr. Weidmann from alleging contributory negligence against Mr. Ulmer in this action…
 While I have decided that there was no negligence on Mr. Ulmer contributing to the collision, based upon the evidence that I have accepted, I cannot say that this was a defence advanced in bad faith for the ulterior purpose of emotionally disturbing the plaintiff and putting pressure on her to settle at a figure favourable to the defendants.
 Although I have concluded that it was an abuse of process by the defendants to deny liability completely, they were not guilty of an abuse of process in maintaining the defence of contributory negligence of Mr. Ulmer at all times.
The Plaintiff was ultimately awarded damages for her accident related losses and these included $10,000 for ‘nervous shock’. Paragraphs 97-215 of the Reasons for Judgement are worth reviewing for Mr. Justice Truscott’s thorough review of the law of nervous shock claims.