In Vance v. Cartwright, the Plaintiff was injured when the motorcycle he was on collided with the back of a vehicle. The Plaintiff brought an ICBC claim for pain and suffering, as well as various other types of damages. The Plaintiff, believing the Defendant would be turning left, attempted to ride behind the Defendant‘s vehicle, however the Defendant‘s vehicle stopped instead. The Plaintiff struck the back of the vehicle, and was injured as a result. By consent, the liability component of the claim was severed from quantum (amount of damages). Although it was common ground that the Plaintiff had the right of way, the Court ruled that the Plaintiff was wholly liable for the accident.

 

[42] I find that the accident happened through no fault on the part of the defendant. She did what was reasonably expected of her. She stopped at the line, checked for traffic, moved forward slowly giving her improved sight lines, and when she saw the oncoming motorcycle stopped again. She cannot be held responsible for his decision to veer to the right.

[43] The plaintiff says that the defendant was moving into his lane and that he felt she was committed to making her left turn. That evidence struck me as a post hoc rationalization of the plaintiff’s actions. There was nothing in the defendant’s actions to indicate she was doing anything other than proceeding forward slowly before committing to a turn.

[44] I find this accident happened solely due to the plaintiff’s fault. He approached an intersection which he ought to have known had limited visibility, travelling not out towards the centre line where he would have been more easily seen, but far to the right, making him less visible to the defendant. He was speeding which cut his reaction time and would have cut the reaction time of other drivers as well.

[45] The evidence of how he reacted when he saw the defendant’s car is, at least, equally consistent with him having panicked when he saw the defendant’s car or with him having made a poor reactive choice reflecting his lack of training and experience.

 

In McStravick v. Metzler, the Plaintiffs were the driver and passenger of a motorcycle who were seriously injured in an accident after clipping the back of a car in front of them. The operator of the motorcycle claims a vehicle that had not properly merged forced him into the vehicle that he struck from behind. Both Plaintiffs brought ICBC claims for damages. As the identity of the driver of the other vehicle was unascertained, ICBC was named as a nominal Defendant in the action. Under the unique circumstances of this case in question, the operator of the motorcycle was not found to be negligent, and ICBC was held to be liable with respect to the unknown motorist.

 

[89]        Walker v. Brownlee is an oft-cited case, and it was relied upon by Powers J. in Lowe.  Adopting Walker v. Brownlee, as applied in Lowe, I conclude that before Mr. Metzler can be found at fault, in whole or in part, the onus is on the opposing parties to show that:

 

(a)      Mr. Metzler was aware of, or by the exercise of reasonable care, should have become aware that Ms. Sidwell was going to disregard his right of way;

(b)      Mr. Metzler had sufficient opportunity to avoid the accident and that a reasonably careful and skilful driver would have taken that opportunity.  Any doubt on this point is to be resolved in favour of Mr. Metzler as the operator of the dominant vehicle.
[90]        I accept the evidence of Mr. Metzler that he assumed the Sidwell vehicle would not merge into his lane until he had safely passed.  Two vehicles had already merged in front of him, the second aggressively so, and I conclude his assumption was a reasonable one in all the circumstances.  He took evasive action by changing lanes.  As I have said earlier, the evidence is unclear as to how established Mr. Metzler was in the left-hand lane immediately prior to his emergency braking.  On the state of the evidence I am unable to conclude that he had sufficient time in the left-hand lane to establish a safe distance between his motorcycle and the car ahead.  It follows that ICBC has not discharged the burden upon it to show that Mr. Metzler had sufficient opportunity to avoid the accident.  It also follows that the other parties to the two actions who alleged negligence on the part of Mr. Metzler have similarly failed to meet their burden.

In Hagen v ICBC, the British Columbia Court of Appeal addressed the issue of when someone riding a motorcycle is in breach of their insurance policy for not being supervised by a qualified driver. At trial, ICBC argued that the Plaintiff should not be entitled to “no-fault” benefits because he was not at all times under the direct supervision of a qualified driver. In the facts of this case, the accident occurred when the motorcyclist was only very momentarily, through no fault of his own, out of view of the qualified driver. ICBC’S lawyer’s appeal was dismissed.

 

[21]              One may ask whether it was intended that a learner motorcyclist would be in breach of the supervision requirement when, having arranged for supervision, the supervisor acted contrary to agreement and took another route? In my view the answer is no.

 

[22]           This discussion is akin to the discussion of “due diligence” urged upon us by the appellant in saying we need not concern ourselves with the “offence” consequences of the interpretation it advocates. It says Mr. Hagen could answer a charge of breaching the supervision requirement by saying that he demonstrated due diligence in his attempt to comply, and that his non-compliance was outside of his control. In other words, it says a charge of breaching s. 30.06(4) would be treated as a strict liability offence. If that is the case, why, then, should other consequences, perhaps more grave, adhere to Mr. Hagen in a civil context because his supervision failed in spite of his reasonable efforts to comply with the section?

 

[23]           Section 30.06(4) is directed entirely to the behaviour of the learner, and in my view s. 30.06(5), in articulating the requirement of observation at all times, must be read as focusing upon the behaviour for which the learner can be responsible. Taking this approach, s. 30.06 of the Regulations, read in context, requires the learner to take all reasonable steps to ensure he (or she) is being supervised in compliance with the Regulations. This requires the learner to arrange for supervision by a person who commits to keeping him in sight at all times, and requires the learner to refrain from driving where it is not reasonable for him (or her) to think such supervision is occurring. I readily acknowledge that there will be circumstances in which a supervisor who fails to follow may nullify the learner’s Part 7 benefits, as in a failure to keep sight of the learner for such a period of time or distance that the learner, acting reasonably, should have become aware the plan for supervision had been compromised. Thus there will be a factual question: did the learner take all reasonable steps to ensure he was being supervised? In this case that translates to the question: should the learner have been aware he was not in sight of the supervisor?

 

[24]            This is a case in which the supervisor, not the learner, made a mistake, a mistake which was so near in time and distance to the accident it was open to conclude Mr. Hagen could not be faulted for failing to detect his loss of supervision. The judge described the lack of supervision as momentary. He referred to evidence that Mr. Hagen had seen the supervisor behind him at the previous intersection. The judge considered the evidence of the street design and the evidence that the many stop signs had permitted some vehicles to fall in between Mr. Hagen and his supervisor. I consider it was open to him on the evidence to conclude that this was a case of loss of contact that did not put Mr. Hagen in breach of the Regulations.

 

In Brooks-Martin v Martin, a husband and wife were traveling in a staggered formation on their motorcycles. The husband cut in front of his wife, who was injured while attempting to avoid an accident. The Court found the Defendant husband 70% at fault, and the wife 30% at fault.

 

[148]     By reason of s. 194(4) of the Motor Vehicle Act, it is not unlawful for two motorcycle drivers to ride side-by-side in the same traffic lane. I accept that it is permissible and common practice among motorcycle riders to ride in their lane of travel in the A position and C position, and then come to a stop at approximately the same time, side-by-side. But in my view, s. 194(4) does not operate for or against the plaintiff in this case…

 

[159]      Here, the two motorcycles were each travelling at about 40 kph, which translates to 11.1 metres in one second. The plaintiff was only about 4.56 metres behind her husband, and so she was clearly in breach of the one-second rule.

 

[160]      I must consider the plaintiff’s driving conduct in relation to the stopped truck. When he swerved to the right, the defendant Martin was 24 to 32 feet (i.e., 7.3 to 9.7 metres) away from the pickup truck. Even accepting the plaintiff’s evidence that she was then 14 to 16 feet (4.25 to 4.86 metres) further away from the pickup truck, she would still have been only 11.55 to 14.56 metres away from the back of the pickup truck.

 

[161]      The plaintiff testified that the reason she put on her brakes was to avoid crashing into her husband’s motorcycle. She did not say when she would have applied the brakes, in order to stop behind the pickup truck. But if she waited one more second, she would have travelled another 11 metres and would have at best only a few metres left within which to stop. In my opinion, the plaintiff’s own conduct contradicts her evidence that she had always intended to come to a stop behind the back end of the pickup truck and that she was in the process of doing so when confronted with an emergency situation. I do not accept her evidence to that effect. I do not accept the plaintiff’s contention that, if her husband had not cut in front of her, she would have had sufficient time and distance to come to a safe stop behind the truck.

 

[162]     I am satisfied that the plaintiff failed to take reasonable care for her own safety, in several respects. In my opinion, a motorcycle driver who possessed reasonable driving skills and who was exercising reasonable care for her own safety would not have been travelling in the C position only two motorcycle lengths behind a lead motorcycle in the A position, at a speed of 40 kph, when both riders were approaching the back end of a stopped pickup truck and when she was not more than 14.56 metres away from that truck (and when the lead motorcycle driver in the A position was closer to that truck and travelling at least as fast as she was).

 

[163]     I find that when the defendant Martin steered in front of her, the plaintiff was driving without due care and attention and at a speed that was excessive relative to the road and traffic conditions, in relation to both her husband’s motorcycle and the stopped truck. That conduct was contrary to s. 144(1) of the Motor Vehicle Act and also constituted negligence.

In Santiago v James, the Plaintiff was a passenger injured when she was thrown off the back of a motorcycle as the motorcycle switched gears. In holding the operator of the motorcycle negligent, the Court commented that:

 

[20]           Mr. James estimated that Ms. Santiago had been a passenger on his motorcycle about 100 times.  He indicated that he was comfortable with her.  As to what instructions he had given to her on earlier occasions, he testified:  “I just asked her if she was all set up and ready to hold on” and nothing else.  He confirmed that he did not show Ms. Santiago where the hand strap was and stated:  “no, I – no one’s ever used it”, “they usually just hold onto me”.  He indicated that he initially gave Ms. Santiago the instructions to hold onto him and he confirmed that he did not instruct her how she should hold onto him.  In the past, he indicated that she held onto “the side of my clothes or my back”.  Mr. James was asked whether he gave instructions to his passengers and whether he told her to “wrap her hands around your waist” and he answered “no”, “I usually let them decide their own way of holding on”.

 

[23]            I find that Mr. James was an experienced motorcyclist.  I also find that Ms. Santiago was an experienced passenger on a motorcycle and that she had considerable experience as a passenger on a motorcycle driven by Mr. James.  As an experienced passenger, Ms. Santiago would have been very much aware of what occurs when the driver of a motorcycle shifts gears.  I find that nothing on August 13, 2002 would have diverted Ms. Santiago’s attention away from what she could expect would be how Mr. James would operate his motorcycle.  I find that she would have no expectation of sudden acceleration and that her previous experience including the trip that day from Dewdney to Harrison Mills would not have led her to believe that the motorcycle would be driven by Mr. James in a way that sudden acceleration would occur.

 

[24]            I find that Mr. James did operate the motorcycle negligently that day.  I find that he accelerated between first and second gear and beyond in an unsafe manner and at a rate which was far in excess of what a passenger like Ms. Santiago would expect and was entitled to expect.  I find that the excessive acceleration was undertaken without warning Ms. Santiago that it was about to occur