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 158 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 this week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a collision involving a right hand turning vehicle and a cyclist attempting to pass the vehicle on the inside lane.
In this week’s case (Nelson v. Lafarge Canada Inc.) the Plaintiff was “cycling hard and fast alongside the Truck as the two approached the Intersection in tandem. Mr. Nelson’s speed exceeded the Truck’s and it is apparent he was overtaking it on the right as the Truck turned onto Nanaimo.” There was video of the actual collision presented in evidence and it demonstrated that the Truck driver “did engage the Truck’s right signal prior to executing his right turn onto Nanaimo. I accept that he did so well before he arrived at the Intersection after the light had turned green.”
As the truck turned, on a still green light, a collision occurred. Madam Justice Dickson found both parties to blame for the collision with the cyclist bearing 65% of the fault. In reaching this concluding the Court provided the following reasons:
 I agree with counsel for the defendants that Mr. Conarroe was the dominant driver in the circumstances of this Accident. He was proceeding on a green light in the appropriate lane and had signaled his right turn well in advance. He had also looked around as he turned onto Nanaimo and, generally speaking, was entitled to assume that others would obey the rules of the road. Nevertheless, the presence of cyclists in the adjacent curb lane was both proper and predictable. In addition, I have found Mr. Conarroe could and should have kept a more vigilant look-out in the period leading up to the right turn to ensure that it could be safely made.
 Had Mr. Conarroe kept a more vigilant look-out after he stopped for the red light on Hastings and before he started his right turn he would have observed Mr. Nelson cycling hard and fast in the curb lane behind or beside him. It would have been apparent that Mr. Nelson was focusing straight ahead and might attempt to overtake on the right as the two approached the green light, despite the riskiness of such conduct. Armed with this knowledge, Mr. Conarroe could have avoided the Accident by waiting to commence his turn in the Intersection until it was clear either that Mr. Nelson had abandoned the unfolding attempt to pass on the right or completed it successfully. His failure to do so was a failure to take reasonable care and a contributing cause of the Accident.
 Mr. Nelson also failed to take reasonable care for his own safety, which failure was a contributing cause of the Accident. Although, based on Jang, I find that the curb lane was a through lane for cyclists I also find it was unsafe for him to attempt to pass the right-turning Truck when there was little, if any, margin for error associated with such an attempt. As noted, this was a breach of s. 158(2)(a) of the Act. It also fell well below the standard of care to be expected of a reasonably competent cyclist in all of the circumstances.
 Mr. Nelson suffered serious harm and damage as a result of the Accident. The damage has two proximate causes: the negligence of both parties. In these circumstances, liability must be apportioned between the two.
 In assessing the respective fault and blameworthiness of the parties I must evaluate the extent or degree to which each departed from the standard of care owed under the circumstances.
 In balancing blameworthiness, I find Mr. Nelson’s conduct constituted a significant departure from the requisite standard of care which created a risk of serious harm. He was aware of the Truck travelling eastbound on his left but focused only on his own path forward and did not check for an activated right turn signal, which was there to be seen. Instead, he tried to pass the Truck on the right without first determining whether such a movement could be made safely. In my view, such conduct was very careless.
 Mr. Conarroe’s conduct also constituted a significant departure from the requisite standard of care, taking into account the vigilance reasonably to be expected of a professional truck driver. He waited far too long to look carefully and thoroughly around himself as he prepared to turn right. This is particularly true given his knowledge of the Truck’s many blind spots. In consequence, Mr. Conarroe was unaware of the fact that Mr. Nelson was cycling hard and fast in the adjacent curb lane after the light changed colour at the Intersection. This failure was not momentary or minor, and it carried the risk of foreseeable harm of considerable magnitude. In my view, however, it was not of the same degree as Mr. Nelson’s failure to take reasonable care for his own safety in attempting to pass a right-turning Truck on the right.
 In all of the circumstances, I conclude that 65% of the fault for the Accident should be borne by Mr. Nelson and 35% should be borne by Mr. Conarroe.
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.
Section 158 of the Motor Vehicle Act prohibits drivers from passing vehicles on the right except in limited circumstances. Reasons for judgement were released this week by the BC Court of Appeal discussing this prohibition in the context of a personal injury lawsuit.
In this week’s case (Smeltzer v. Merrison) the Defendant was travelling Northbound. There was one Northbound lane of traffic which was backed up with other vehicles. The traffic lane widened as it approached in intersection creating two “de-facto” lanes.
The Defendant passed the stopped vehicles on the right intending to make a right hand turn at the upcoming intersection. At the same time the southbound Plaintiff made a left hand turn through a “gap” in the backed up Northbound traffic intending to enter a parkade. At this time a collision occurred.
The Plaintiff sued for damages and had her case dismissed at the trial level. She appealed. The BC Court of Appeal agreed that while the Plaintiff should have kept a proper lookout and was partially to blame for the collision the Defendant also bore some responsibility. The Court found the Defendant should not have been passing on the right in the “de-facto” lane as it was not a “laned roadway” and doing so in these circumstances was negligent. In finding the Defendant partly at fault the BC Court of Appeal provided the following reasons:
 Dickson, an appeal of a cyclist’s conviction for passing on the right, contains the most complete discussion of s. 158 to which we are referred. I would respectively endorse what was said there. Section 158(1) prohibits one vehicle passing another on the right: “The driver of a vehicle must not cause or permit the vehicle to overtake and pass on the right of another vehicle…” There are only three exceptions. Essentially, passing on the right is permitted when the overtaken vehicle is turning left, when passing on a laned roadway, or when passing on a one-way street where room permits. A “laned roadway” is defined. It means a road that is divided into two or more marked lanes for vehicles proceeding in the same direction. The exceptions are qualified by subsection (2) which prohibits any passing on the right when it cannot be done safely or by driving off the road.
 Despite the recognition of a de facto lane in MacLaren, I do not consider the concept can afford any further exception to the three for which s. 158(1) provides. In MacLaren, a cyclist was injured at an intersection which he entered passing on the right of vehicles where there was what was said to be a de facto lane to his right, being a widened part of the road that accommodated vehicles turning right, but was not marked. He was faulted for riding between two lanes instead of positioning himself between the vehicles he passed on the right. It was specifically said (at para. 28) that no determination was being made with respect to whether s. 158 permitted the cyclist to pass on the right.
 I am unable to accept that s. 158(1)(b) permitted Ms. Merrison to pass two or three cars and the truck on the right as she contends. The exception is confined to passing on the right where there are two marked lanes for vehicles proceeding in the same direction and only then when passing can be undertaken in safety. Here, there was only one such lane regardless of whether there was what might be called a second de facto lane. I recognize this means drivers proceeding to turn right at the intersection, as Ms. Merrison was, could not align their vehicles to enter the 100-foot marked lane until it was virtually reached, if there were vehicles ahead in the “through” lane that were not turning left, but that is what the Act provides and it appears to me to be with good reason. If it were otherwise, drivers would be entitled to pass on the right wherever the road is sufficiently wide for two vehicles to pass. Drivers do not expect to be passed on the right when they are not travelling on a road with more than one designated lane. They generally expect to be able to turn off of the road to their right, whether into intersecting streets or driveways, or to pull over to the side of the road or off the road altogether without being obstructed by vehicles passing to their right.
 As quoted from his reasons, the judge said that, while he had not lost sight of the provisions of the Act, he was concerned with a de facto lane of travel, not a “laned roadway” within the meaning of the Act such that only some of the sections were of interest. I am unable to accept he was correct in law to consider Ms. Merrison passing on the right was not prohibited by s. 158, as it appears he did, on that basis. As the judge said, she was not travelling in a “laned roadway” within the meaning of the Act: s. 158(1)(b) did not apply. If she entered a de facto lane, meaning the road became wide enough to permit her to pass the cars and the truck ahead of her on the right, she was, in the circumstances, prohibited from passing them. She was required not to pass the vehicles in front of her until she entered the marked right-turn lane.
 I consider Ms. Merrison was negligent in passing the three cars and the truck on the right in contravention of s. 158. She was negligent because it was reasonably foreseeable that passing on the right, in contravention of a statutory prohibition, could be dangerous to other motorists on the road. Her negligence was, on what the judge said, compounded by her failure to proceed cautiously while maintaining a proper lookout. Had Ms. Merrison not proceeded to pass on the right as she did, the collision would not have occurred. It follows that her negligence was a cause of the accident and the injury Ms. Smeltzer suffered.