Cyclists are particularly vulnerable to serious injury, given the ridiculous law that a cyclist cannot travel on a sidewalk, where clearly there is a far reduced risk of injury. Cyclists involved in accidents with motor vehicles, whether it is their fault or not, may still bring an ICBC claim for medical benefits.

 

Despite the fact that some cyclists breach statutory provisions, this does not necessarily mean that they will be found fully liable for any accident which may occur. The case law is replete with instances of cyclists that do not follow the proper laws, yet are still entitled to bring ICBC claims for their injuries. Much will hinge on whether or not the operator of the motor vehicle exercised reasonable care, and whether the cyclists was “there to be seen” or not.

 

Section 183 of the Motor Vehicle Act discusses the rights and obligations of cyclists in British Columbia.

 

If as a cyclist you are forced to take necessary action to avoid colliding with a negligently driven motor vehicle, and you are consequently injured, you may still have a claim for compensation, even though there was no actual contact between you and the negligently driven motor vehicle.

 

In Ormiston v. ICBC, the Plainitff cyclist was injured when attempting to pass a vehicle on the right, which was originally stationary, but then which all of a sudden veered to the right. The driver of the vehicle fled the scene, and was never identified. The Plaintiff sued ICBC, who acknowledged that there was a collision with an unidentified motorist, but who also argued that the cyclist was fully to blame. At trial, both the cyclist and unidentified driver were found to be responsible, however this finding was reversed by the Court of Appeal, who held that the cyclist was fully to blame for the accident.

 

[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.

 

[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.

In Miles v. Kumar, the Plaintiff was a cyclist who had been traveling in the right lane of traffic, before traversing into the left lane in order to turn left at an intersection. The Defendant had been traveling in the left lane, and a collision ensued shortly after the cyclist had changed lanes. The Plaintiff brought an ICBC claim for pain and suffering, and other forms of damages. The Defendant denied any liability. The Court found the Plaintiff to be fully at fault for the collision, ruling that there was no evidence to suggest that with the exercise of due care and attention, the Defendant would have seen the Plaintiff in time to avoid the collision.

 

[63] In addition to the foregoing, I am also satisfied that there is no evidence upon which I could reasonably conclude: (a) that Ms Kumar ought to have known that Mr. Miles would disregard her right of way; or, (b) that there was sufficient opportunity for a reasonably careful and skilled driver in the position of Ms Kumar to avoid colliding with Mr. Miles (see Walker v. Brownlee, supra).

[64] The evidence establishes that Ms Kumar’s view of Mr. Miles was obscured by the truck to her right. There is no evidence that Ms Kumar saw Mr. Miles at any time prior to entering the left lane in front of her, and no evidence from which it might reasonably be inferred that with the exercise of due care and attention she would have seen Mr. Miles; accordingly, there is no sound basis to find that Ms Kumar ought to have: (a) anticipated that Mr. Miles would disregard her right of way; and, (b) taken reasonable steps to avoid colliding with him. When Mr. Miles entered the left eastbound lane, Ms Kumar had virtually no warning and no reasonable opportunity to avoid the collision. Ms Kumar was a new driver but there is no reasonable basis to conclude that inadequate skill or care was a factor in the collision; moreover, the absence of a reasonable opportunity to avoid the collision accords with Mr. Miles’ unexplained lack of memory of successfully changing lanes before he was struck. The evidence suggests that Mr. Miles moved into the left lane at a distance so close to Ms Kumar’s approaching car that it is highly improbable that a skilled and careful driver in the position of Ms Kumar would have been able to avoid the collision by taking reasonable evasive action.

 

[71] Mr. Miles has failed to prove on a balance of probabilities that the collision in question was caused by the negligence of the defendants; instead, the evidence strongly suggests that Mr. Miles was, in the words of counsel for the defendants, “the author of his own misfortune”. Regrettably, it is, indeed, misfortune for Mr. Miles. He continues to suffer the negative impact of a momentary lapse of good judgment as an experienced, yet vulnerable, cyclist; however, it was his lapse and not that of Ms Kumar. It would be unjust to apportion any blame to the defendants in these circumstances.

 

 

In Nelson v. Lafarge Canada Inc., a collision occurred between a cyclist and a truck at an intersection, after the truck started to turn right. The cyclist had originally been cycling on the right hand side of the truck, as the two approached an intersection, with the cyclist’s speed being greater than that of the truck’s. There was video evidence to suggest that the truck had properly engaged his right turn signal in advance of the intersection. The Plaintiff cyclist was injured, and brought an ICBC claim for damages for pain and suffering, as well as other heads of damages. The Defendant disputed liability. The Court would eventually rule that liability should be shared, with the cyclist being 65% at fault, and the Defendant being 35% at fault.

 

[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.

 

In Callahan v. Kim, the Plaintiff cyclist commenced crossing the crosswalk just as the Defendant driver was turning right from a stopped position. The cyclist was injured, and brought an ICBC for injuries sustained in the accident. Both parties were found to be at fault, with the Defendant being found to be 85% liable.

 

[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.

 

[20]         I turn now to the question of the plaintiff’s liability.

 

[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.

Cyclists are particularly vulnerable to serious injury, given the ridiculous law that a cyclist cannot travel on a sidewalk, where clearly there is a far reduced risk of injury. Cyclists involved in accidents with motor vehicles, whether it is their fault or not, may still bring an ICBC claim for medical benefits.

 

Despite the fact that some cyclists breach statutory provisions, this does not necessarily mean that they will be found fully liable for any accident which may occur. The case law is replete with instances of cyclists that do not follow the proper laws, yet are still entitled to bring ICBC claims for their injuries. Much will hinge on whether or not the operator of the motor vehicle exercised reasonable care, and whether the cyclists was “there to be seen” or not.

 

Section 183 of the Motor Vehicle Act discusses the rights and obligations of cyclists in British Columbia.

 

In Kimber v. Wong, the Plaintiff was a cyclist approaching a T-intersection, when a vehicle traveling in the same direction had stopped. This created an opening for the Defendant, coming from the opposite direction, to turn left across the intersection. As he did so, the cyclist passed the stationary vehicle on the right, and collided with the Defendant’s vehicle, thereby causing injuries to the Plaintiff. The Court held that both the cyclist and Defendant were 50% at fault.

 

[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.

 

[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.

In Deol v Veach, the Court only dealt with the issue of liability, apportioning 75% blame to the driver, and 25% to the cyclist, despite the fact that the cyclist was riding on a sidewalk, in contravention of Section 183 of the Motor Vehicle Act.  The Plaintiff stopped and waited at the exit way of a parking lot before proceeding. He only proceeded after he saw the defendant’s vehicle come to a stop. The Court commented that:

 

[21]         There is no dispute as to the legal principles which inform the analysis of liability in this case.

 

[22]         It is common ground that both the plaintiff and defendant had duties to take reasonable care. The authorities also clearly establish that an individual who is violating a traffic law assumes a heightened duty of care: Hadden v. Lynch, 2008 BCSC 295 at para. 59.

 

[23]         It is also well-settled that a breach of the provisions of the MVA in itself does not establish negligence: Dickie Estate v. Dickie (1991), 5 B. C. A. C. 37 (C.A.). In order to find negligence the court must find that an individual did not exhibit the standard of care which was required in the circumstances and that the negligence contributed to the accident.

 

[24]         In Hadden, a case involving a collision between a truck and a cyclist, the court summarized the duty on a driver as follows:

 

[69]        It is important to remember in cases like the one at bar that the standard of care of a driver is not one of perfection, but whether the driver acted in a manner in which an ordinarily prudent person would act, see Orr v. Faucher, 2005 BCSC 1343; Addison v. Nelles, 2003 BCSC 1860, aff’d 2004 BCCA 623; Russell v. Wang, 2000 BCSC 534.

 

[70]       It seems clear that for the court to impose liability on the defendant, the plaintiff must prove either that the defendant did in fact see him or that the defendant ought to have seen him.  If the defendant did not, or should not have, seen the plaintiff, then the defendant could not have been expected to do anything except proceed through the intersection as he did.

 

[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…

 

[30]     At this juncture I note that I did not find either counsel’s submissions on the other alleged breaches of the MVA helpful.

 

[31]     In Bradley v. Bath, 2010 BCCA 10 (CanLII), 2010 BCCA 10, in considering the liability of a cyclist riding on a sidewalk that collided with a driver of a vehicle exiting a gas station, the Court of Appeal stated as follows at para. 28:

 

[28]      In my opinion, the plaintiff was at fault, and his fault was one of the causes of the accident.  Contrary to law, he was riding his bicycle on the sidewalk against the flow of traffic.  He saw the defendant’s vehicle moving towards the exit he was approaching.  Rather than making eye contact with the defendant or stopping his bicycle and letting the defendant’s vehicle exit the gas station, the plaintiff assumed the defendant saw him and would not accelerate his vehicle.  In these circumstances, he was at fault for continuing to ride his bicycle across the path to be taken by the defendant’s vehicle in exiting the gas station. [Emphasis added.]

 

[32]    On the totality of the evidence, and applying the principles articulated in Bradley, I find that the plaintiff failed to take reasonable care for his own safety. Given his heightened duty of care, the plaintiff, after stopping and before attempting to cross the Exitway, should have made some form of eye contact to ensure that the defendant had seen him. By the plaintiff’s own admission the defendant had given no indication to the plaintiff that he had seen him. In short, the plaintiff was at fault and his failure to take reasonable care for his own safety was one of the causes of the accident.

 

[33]     In summary I conclude that the conduct of each of the plaintiff and the defendant was negligent and contributed to the accident. In the result liability will be apportioned pursuant to the provisions of the Negligence Act, R.S.B.C. 1996, c. 333.

 

[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.

 

In Dobre v Langley, the Court awarded $70,000 for pain and suffering for a broken thumb, as well as neck and back pain. The Plaintiff was riding his bike across a marked crosswalk, when he was struck by a motorist. The Court held that, despite the fact that the Plaintiff was in contravention of Section 183 of the Motor Vehicle Act, the Defendant would still bear most of the blame, in this case 85%. The Court listed the basic principles involved in situations like this:

 

[31]         The basic principles in a case such as this are obviously well known. For the parties’ benefit, I will relate them in plain words.

·       Each person has a duty to look out for others and to take reasonable care that their own actions do not cause others foreseeable  harm.

·       Each person has a reciprocal duty to take reasonable steps to look out for their own safety.

·       The degree of care the law expects a person to exercise in a given situation is proportionate to the risks the actors knew about or should have known about, considering all of the relevant circumstances. The greater the risks associated with the activities involved, the greater the degree of care required.

·       Where a judge finds the careless actions of more than one actor, including the injured party, were causes of a person’s harm, the judge can apportion responsibility between them on a percentage basis that reflects the relative blameworthiness of the parties.

·       Even if a judge finds a defendant wholly responsible for the accident’s occurring, they may still reduce the plaintiff’s damages because the plaintiff failed to exercise reasonable care for his or her own safety by taking steps that would have avoided or reduced his or her injuries, such as having failed to wear a seatbelt or a bicycle helmet.

·       The Motor Vehicle Act, R.S.B.C., c. 318 [Motor Vehicle Act], lays down specific rules of the road to regulate the use of highways and crosswalks by motor vehicles, bicyclists and pedestrians. The provisions of the Motor Vehicle Act reflect older common law rules, modified and expanded to reflect the demands of modern traffic.

·       The standard of care expected of a driver is not perfection, but whether they acted as an ordinarily prudent person would act

 

The Court further noted that:

 

[34]           It is s. 183(2)(b) of the Motor Vehicle Act that obligates bicyclists intending to cross a highway at a crosswalk to dismount and walk their bike across it. Mr. Dobre’s failure to dismount and cross the intersection on foot means he does not meet the definition of a “pedestrian” set out in s. 119 of the Motor Vehicle Act. He thus loses the statutory right-of-way that his crossing on foot would have given him. As briefly touched on earlier, the defendant still owed Mr. Dobre a general legal duty of care that Mr. Dobre, through proving he was a recognizable hazard and that his actions had left the defendant with enough time and distance to see and avoid striking him, has shown she failed to discharge by her failing to keep an adequate lookout: Kerr v. Creighton, 2007 BCSC 208 (CanLII), 2007 BCSC 208, 155 A.C.W.S. (3d) 481 at paras. 45, 56 and Walker v. Brownlee and Harmon, [1952] 2 D.L.R. 450, [1952] S.C.J. No. 56 (S.C.C.). As noted, I have found Mr. Dobre discharged that burden.

 

[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….

 

[45]           I turn now to discuss further Mr. Dobre’s accepted theory that he stopped and activated the pedestrian warning lights before entering the crosswalk and whether his riding instead of walking the bicycle across the marked crosswalk calls for some assignment of liability against him.

 

[46]           Given the fact that before impact Ms. Lang never saw Mr. Dobre riding across the intersection, it is unlikely she would have seen him had he chosen to walk across the intersection instead. But because Mr. Dobre’s failure to dismount imposed on him a heightened duty to take care for his own personal safety, as well as to make his presence known to oncoming drivers, his failure to dismount and walk remains a relevant factor for determining any apportionment of liability between the parties.

 

[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.

 

In Bradley v Bath, another case dealing with a cyclist’s contravention of Section 183 of the Motor Vehicle Act, the British Columbia Court of Appeal considered the liability of a cyclist riding on a sidewalk that collided with a driver of a vehicle exiting a gas station, and stated that:

 

[26]         In the present case, the trial judge held that the plaintiff was not contributorily negligent because the plaintiff could have been struck by the defendant’s vehicle if he had been a jogger, rollerblader or regular pedestrian rather than riding his bicycle.  Thus, she concluded that the plaintiff’s breach of the Motor Vehicle Act was not causally connected to the accident.

 

[27]         In my respectful view, the trial judge did not ask the correct question.  The proper question was not whether a jogger, rollerblader or pedestrian could have been hit by the defendant’s vehicle.  The correct inquiry was to determine whether the plaintiff failed to take reasonable care for his own safety and whether his failure to do so was one of the causes of the accident.  While the judge acknowledged that the plaintiff was under a heightened duty of care because he was in breach of the law by riding his bicycle on the sidewalk, she failed to give effect to the heightened duty because she did not consider what care had been taken by the plaintiff when he saw the defendant’s vehicle moving towards the exit from the gas station.

 

[28]      In my opinion, the plaintiff was at fault, and his fault was one of the causes of the accident.  Contrary to law, he was riding his bicycle on the sidewalk against the flow of traffic.  He saw the defendant’s vehicle moving towards the exit he was approaching.  Rather than making eye contact with the defendant or stopping his bicycle and letting the defendant’s vehicle exit the gas station, the plaintiff assumed the defendant saw him and would not accelerate his vehicle. In these circumstances, he was at fault for continuing to ride his bicycle across the path to be taken by the defendant’s vehicle in exiting the gas station. [Emphasis added.]

 

[30] I am of the view that the fault of the parties in this case is equal.  The plaintiff’s fault was riding his bicycle on a sidewalk against the flow of traffic and continuing to ride across the path of the exiting vehicle without ensuring his way was clear.  The defendant’s fault was his failure to keep a proper lookout when exiting the gas station.  I do not believe that one party is more culpable than the other.

 

The Plaintiff had originally obtained nearly a $400,000 global award at the trial level, with the Defendant being held 100% liable, however this original award was reduced by half, given the Court of Appeal’s ruling.

In Sivasubramaniam v. Franz, a cyclist traveling on the shoulder of the road was found to be 100% at fault for striking the back of a truck which had stopped to turn right at an intersection.

 

[55]           The evidence clearly establishes that Mr. Sivasubramaniam failed to meet the standard of care required of a driver in the circumstances, and that he was negligent.  He was driving on the shoulder of the roadway, rather than in the lane marked for vehicle travel.  I accept that it would also have been hazardous for Mr. Sivasubramaniam to ride in a driving lane on such a busy street, but having chosen to ride in an area that is not designated for vehicles; and to pass vehicles on the right hand side while travelling in that area, Mr. Sivasubramaniam had a duty to take extra care to ensure that he was visible to drivers, and that he took precautions.  This was particularly so as he approached a busy intersection.  Options available to him included signalling and moving into the driving lane to his left when it was safe to do so, and proceeding through the intersection in that driving lane; or stopping and dismounting from his bicycle and crossing the intersection in the pedestrian crosswalk and then remounting his vehicle on the other side of Blue Mountain Street. 

 

[56]           At the very least, he ought to have slowed his bicycle and to have checked carefully for indications that vehicles were intending to turn right from Lougheed Highway onto Blue Mountain Street, before proceeding across the intersection to the right of traffic in the driving lanes.

 

[57]           Instead of driving in a cautious fashion, I conclude that Mr. Sivasubramaniam was accelerating as he approached the intersection, and, as I have said earlier, steered to the right with the intention of either riding in the cross walk – a prohibited act – or riding near it. 

 

[58]           Mr. Sivasubramaniam focused his attention on the roadway ahead of him, and did not look to see what was there to be seen, the three flashing right turn signals on Mr. Franz’s concrete mixer truck.  His failure to see the signal lights was also negligent.

 

[62]           This is not a case where a driver has passed a cyclist and therefore observed the cyclist’s presence, before turning across the cyclist’s path.  This is not a case of a turn or lane change made without adequate notice to traffic approaching from the rear.  Mr. Franz had been signalling his intention to make a right turn for some considerable time before he commenced the turn. 

 

[63]           This is not a case of a driver turning suddenly across the path of a cyclist, and effectively cutting the cyclist off.  Mr. Franz made a slow turn, according to all of the evidence, and commenced his turn, I have concluded, at a time that Mr. Sivasubramaniam was some distance – several car lengths – from the intersection.  

 

[67]            The evidence compels me to conclude that for some unknown reason, Mr. Sivasubramaniam simply failed to note the fact that Mr. Franz’s vehicle not only was intending to turn right, but had commenced that turn, and he failed to slow or stop his bicycle until it was too late to do so.  Mr. Sivasubramaniam assumed, incorrectly, that the concrete mixer truck would proceed straight through the intersection.  He made this assumption despite his knowledge that vehicles frequently do turn right at this intersection, and despite the signal flashing in several locations on the concrete mixer truck.  Rather than slowing or stopping his bicycle as he approached the intersection, he was, I conclude, accelerating by continuing to pedal on the downward slope.

In MacLaren v Kucharek, the Plaintiff was lawfully proceeding through an intersection, when he was struck by the Defendant’s left-turning vehicle. The Court held the Defendant to be 100% at fault.

 

[31]           I am satisfied that given the idiosyncrasies of this intersection, and in particular the presence of a mandatory right turn lane of traffic immediately to the south of Laurel Drive, the plaintiff properly positioned his bicycle so that he would enter the right hand side of the through lane once he crossed to the south side of the intersection of 140th Street and 96th Avenue.  I find that his position on the roadway was lawful and proper and satisfied his obligation under s. 183((2)(c) to ride “as near as practicable to the right side of the highway”.  I find that he was keeping a proper lookout for traffic ahead and saw nothing to alert him that the defendant’s vehicle was about to turn into his pathway. 

 

[32]           Before turning left, past the stopped pick up truck and into the next lane of traffic, I find that the defendant failed to ensure there was no traffic approaching so closely as to constitute an immediate hazard.  Accordingly I find he was in breach of s. 174 of the Motor Vehicle Act.  

 

[33]           My overall sense of the defendant’s evidence was that at some point during his left hand turn his attention was drawn to or momentarily distracted by an approaching southbound vehicle in the curb lane, which he was concerned might either be proceeding straight through or might be turning right at the intersection.  At a point when he was halfway across the through lane, he stopped his vehicle to avoid any collision with that vehicle.  However in the interim he overlooked that he had driven into the path of the plaintiff’s own oncoming bicycle. 

 

[34]           While the defence raised the suggestion the plaintiff’s bicycle approached at such a high speed that he could not be seen by the defendant, there was no evidence to support such a theory.  As I noted earlier, Mr. Sanchez was unable to attribute any speed to the plaintiff’s bicycle.  Nor was it put to the plaintiff on cross examination that he was speeding down the hill as he approached the intersection.  To the contrary he testified that he was not speeding and estimated his own speed at 25kph-30kph, well below the 50kph speed limit.  I find there is no evidence that excessive speed played any role in this accident.  The burden is on the servient driver to establish that the speed of the dominant vehicle prevented its driver from taking reasonable measures to avoid the accident.  That burden has not been met here.  

 

[35]           Thus, in all of the circumstances, I find that the plaintiff was travelling lawfully along 140th Street at Laurel Drive when the defendant turned into his path.  The defendant negligently failed to ensure he could complete his left hand turn without first ensuring before doing so that there was no traffic approaching so closely as to constitute an immediate hazard, thus breaching s. 174 of the Act.  By the same token I find the plaintiff had no opportunity to avoid the collision and that accordingly he was not contributorily negligent.