Tag: section 183 motor vehicle act

Fault For Right Hand Turning Vehicle Striking Cyclist Discussed by BC Supreme Court

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:
[77]         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.
[78]         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.
[79]         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.
[80]         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.
[81]         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.
[82]         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.
[83]         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.
[84]         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.

Cyclist Found 15% at fault For Collision While Riding in Cross-Walk

In my continued efforts to document BC decisions addressing fault for vehicle/cyclist collisions, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing an crosswalk collision involving such an incident.
In last week’s case (Callahan v. Kim) the Defendant motorist stopped at an intersection on a red light.  He intended to make a right hand turn.  At the same time the Plaintiff cyclist approached on the sidewalk to the motorist’s right.   The Defendant failed to see the Plaintiff who entered the intersection on his bicycle as the Defendant commenced his right hand turn.  The Court found both to blame with the motorist shouldering 85% of the fault.  In coming to this decision Madam Justice Fenlon provided the following reasons:
[10]         As for Mr. Kim’s vehicle, I find that he stopped at the stop line on Riverwood Gate, intending to make a right turn north onto Coast Meridian. He looked quickly to his right and failed to notice the plaintiff who at that time was either at the pedestrian control button or approaching it. Thereafter, as Mr. Kim admitted, he was looking to his left and then ahead and did not check right again before moving into the crosswalk and colliding with Mr. Callahan…
[18]         In assessing whether Mr. Kim failed to meet his duty of care, a number of considerations come into play. First, Mr. Kim was proceeding against a red light. Second, Mr. Callahan was in a marked crosswalk with both a green light and a pedestrian walk sign in his favour. I find that, even though Mr. Kim acted within the law in making a right turn on a red light, he had a clear duty to give way to a user of the crosswalk. While Mr. Callahan contravened s. 183(2)(b) by not dismounting and walking his bicycle across the street as required by the Motor Vehicle Act, and therefore did not have the statutory right-of-way, he was nonetheless a user of the crosswalk. A crosswalk is precisely where other users of the roadway are expected to be, especially when the traffic signals are in their favour.
[19]         I conclude that Mr. Kim departed from the standard of care he owed in these circumstances when he failed to check again to his right before setting his vehicle in motion to start his right turn. Mr. Kim’s failure to do so was a direct cause of the accident…
[33]         In my view, the case before me is far more like Dobre. In that case, the plaintiff cyclist approached the intersection by riding on the wrong side of the street but stopped before entering the marked crosswalk, looked left and right and pushed the button to activate the pedestrian warning light. He was pedalling slowly across the intersection and was close to the centre of the road when the defendant’s car struck the rear wheel of his bicycle. As in the case at bar, the plaintiff in Dobre checked to his left and observed a car approaching but assumed it posed no hazard to him. In that case, N. Brown J. apportioned liability 85% to the driver and 15% to the cyclist.
[34]         I find Mr. Kim’s conduct in failing to observe the plaintiff in the crosswalk and in starting a turn without looking to his right to be far more blameworthy than Mr. Callahan’s failure to make eye contact. Taking into account all of the circumstances in the case before me, I conclude that liability should be apportioned 85% to Mr. Kim and 15% to Mr. Callahan.

Driver Found Faultless For Collision With Child on Kick Scooter


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a collision between a motorist and a child on a scooter.
In last week’s case (Adams v. Zanatta) the Plaintiff, who was 9 years old at the time, suffered serious injuries in a 2006 collision.  The Plaintiff was travelling down a paved alley on a kick scooter.  At the same time the Defendant was operating a vehicle.  From the Defendant’s perspective the alley was obstructed from view because of a fence.   The Plaintiff came from the alley and entered the roadway without yielding the right of way.  A collision occurred.  The Plaintiff sued for damages arguing the Defendant should have been more cautious in the circumstances.  In dismissing the claim Madam Justice Brown provided the following reasons:

[17] I accept Mr. Zanatta’s evidence that Mr. Adams did not stop before crossing 19th Avenue, even though Mr. Zanatta’s vehicle was an immediate hazard.  To fix blame on Mr. Zanatta, Mr. Adams must show that after Mr. Zanatta became aware, or with reasonable care could have become aware, he had a sufficient opportunity to avoid the accident.

[18] I am not satisfied that Mr. Zanatta could have avoided the accident by exercising reasonable care.

[19] Mr. Zanatta was driving in a careful and prudent manner after he turned onto 19th Avenue.  He was aware of the obstructed view of the alley caused by the fence.  He was also concerned about the construction on the north side of 19th Avenue and the cars parked on both sides of the street.  Although I am not able to determine exactly how fast Mr. Zanatta was traveling, I accept his evidence that he was driving slowly and that his best estimate, after returning to the site, is that he was traveling approximately 20 km per hour.  I also accept his evidence that he was beside the tree and portable toilet shown in the photos when he saw Mr. Adams.  At that point, Mr. Adams was just by the fence, coming out of the alley.  Mr. Zanatta applied his brakes as hard as he could and tried to swerve to the right, but could not avoid the collision.

[20] The evidence does not satisfy me that Mr. Zanatta’s driving was in any way inappropriate or negligent.  He was not traveling at an excessive speed for the circumstances.  I am satisfied that he was driving very slowly…

[25] Here, I am able to make the following findings: Mr. Zanatta was driving very slowly, approximately 20 km per hour.  Mr. Adams was traveling quickly.  I am satisfied that he was traveling faster than 5-10 km per hour, although I cannot determine how quickly he was traveling.  Mr. Adams did not stop.  As soon as he saw Mr. Adams, Mr. Zanatta braked hard, but could not stop his vehicle before the point of impact.

[26] As I have said, Mr. Zanatta’s speed was entirely appropriate to the circumstances, which included the restrictions to visibility caused by the fence and the parked cars and the construction, as well as the possibility that children and others may be in the area, and may emerge from the alley on either side.  I am not satisfied that a reasonably careful driver would have scanned the alley rather than looking forward, given all of the traffic concerns in the vicinity, on both sides of the street.  In any event, I am not satisfied that Mr. Zanatta could have avoided the collision if he had been looking toward the alley.

[27] Mr. Zanatta braked hard as soon as he saw Mr. Adams. He met his obligation pursuant to s. 181 of the Act. The Court of Appeal stated the duty of a driver toward children in Brewster (Guardian ad litem of) v. Swain, 2007 BCCA 347 at para. 18:

Chohan does state the law with respect to the duty on drivers to watch for children on or near the roadway.  Children are less inclined to obey the rules of the road and are more likely than adults to act unpredictably.  Mr. Justice Taylor said this:  “Once observed in a dangerous situation, children must be given special attention, so that any precautionary or evasive action indicated will be taken in time” (my emphasis).  This is especially so in suburban areas.

[28] As I have said, Mr. Zanatta was driving very slowly, in part because there might be children in the vicinity, although he had not seen any on 19th Avenue.  As soon as he saw Mr. Adams, he braked hard. In my view he fulfilled his duty.  A reasonably careful driver would not have done more.

For more on the Standard of Care for motorists driving near children you can click here for the Supreme Court of Canada’s latest comments on this topic.

Cyclist Found 50% at Fault For Crash After Passing Vehicle on the Right

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:

[66] 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.

[67] 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.

[68] 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 …

[69] 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.

[70] 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.

[71] 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.

[72] 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.

[73] 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.

[74] 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, [1997] B.C.J. No. 2853 at para. 24 (B.C.C.A.).

[75] 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.

[76] 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.

[77] 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.

Motorist 75% At Fault for Striking Cyclist on Sidewalk

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:

[25] 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.

[26] 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…

[36] 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.

[37] 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.

Cyclist 15% At Fault for Crash For Riding in Crosswalk


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing the issue of fault when a cyclist is struck by a vehicle while riding their bicycle in a marked cross-walk.
In today’s case (Dobre v. Langley) the Plaintiff intended to cross Martin Drive in Surrey, BC.  He approached  a marked cross-walk, activated the pedestrian lights, mounted his bike and began to cycle across the cross-walk.  At the same time the Defendant was driving near the middle lane of Martin Drive.  She “never saw” the Plaintiff prior to impact and was “completely oblivious to his presence until after impact.“.
The court found that while the Plaintiff lost his statutory right of way by riding his bike in a cross-walk the Defendant still owed a duty of care and was in breach of this by driving carelessly.  The Plaintiff was also found 15% at fault for riding in the cross-walk.  Paragraphs 31-49 of the reasons for judgement do a good job discussing the legal principles in play in these types of cases.  In coming to a 85/15 split of fault Mr. Justice Brown provided the following useful comments:
[41] In the circumstances of this case, particularly Mr. Dobre’s decision to ride across the intersection crosswalk, which heightened his duty of care, he either should have waited longer at the curb to ensure the defendant was responding to the pedestrian warning lights, or at least have more carefully monitored the defendant’s approach to ensure he could proceed safely. Had he noticed sooner that the defendant was not reducing her speed, he likely could have gotten completely ahead of harm’s way. Mr. Dobre’s decision to ride his bike across the intersection, and his resulting heightened duty, required at least those simple steps to maximize the chances the defendant was noticing him and to ensure his own safety….

[47] By any fair measure, Mr. Dobre did exercise a considerable degree of care. He stopped at the curb, straddling the bike. He looked west and east. He saw the defendant well to the east. He mistakenly reasoned she was far enough away to give him no reason for concern, especially, he thought, with the warning the flashing lights would give. He mounted the seat. He pedalled across the intersection slowly. When he saw the defendant at the last moment, he pedalled a few hard strokes, almost succeeding in removing himself from harm’s way. Apart from his one glance in either direction before pushing the button, however, he paid no further regard to Ms. Lang’s approach.

[48] In the case at bar, Mr. Dobre, for the reasons stated, owed a heightened duty of care. The defendant, for her part, was approaching a well-marked crosswalk and, in the circumstances, should have been extra vigilant in maintaining a lookout for those who might be approaching or in the crosswalk.

[49] Considering all the circumstances, I find the apportionment that fairly reflects the parties’ relative blameworthiness is an 85/15 split in liability, favouring Mr. Dobre. Mr. Dobre will thus recover 85% of his damages, to which I now turn.

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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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