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Achieving-Justice

Be aware when you turn

This is the final of a four-part series about the legal duties of motorists and cyclists in common collision scenarios.

Increased awareness of common collisions, and how they can be avoided by meeting your legal driving and riding duties, will hopefully make our roads safer.

Imagine yourself as a motorist waiting to turn left in congested traffic. Others are lined up behind you to make the same turn. The two lanes of oncoming traffic stop leaving a gap for you to make your turn.

Do you proceed as quickly as possible to maximize the opportunity of those behind you to also make it through?

Now imagine yourself as a cyclist riding along two lanes of stop and go congested traffic.

Do you continuously maintain your cruising speed of 25-30 km/hour?

Line of sight between left turning motorist and oncoming cyclist is blocked by the two lanes of stopped traffic.

The collision, causing serious injuries to the cyclist, occurs when the motorist proceeds through the gap in traffic just as the cyclist reaches the same gap.

Courts consistently hold left turning motorists at fault in collisions with oncoming cyclists.

In MacLaren v. Kucharek, 2008 BCSC 673, the judge assessed:

“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.”

The judge’s words in Kimber v. Wong, 2012 BCSC 783:

“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.”

And in Ilett v. Buckley, 2017 BCCA 257:

“She was held to be at fault for the collision because, as she made her left turn, she drove across the northbound lane at speed when she was unable to see whether the shoulder was clear of cyclists. She was required to drive more slowly until she could see beyond the large vehicle and ascertain what she needed to know.”

This is a more common collision scenario between vehicles, with stop and go congested traffic leaving a gap for a left turner who collides with an oncoming vehicle cruising along a less congested lane (often the HOV lane).

These collisions would be virtually eliminated if the left turner always proceeded cautiously, inching along as might be necessary to eliminate the possibility of colliding with an oncoming motorist or cyclist.

But fault for these collisions is typically shared. A cyclist cruising along the shoulder, or even a bicycle lane, should anticipate the possibility of a left turning vehicle if traffic stops, leaving a gap.

The judge in the MacLaren decision (above) had found the left-turning motorist 100% at fault. That decision was appealed, the result being a sharing of responsibility with the cyclist. Our Court of Appeal in MacLaren v. Kucharek, 2010 BCCA 206, determined that the cyclist ought to have mer

ged into the stop and go-through lane when proceeding into the intersection, rather than riding alongside and passing the those vehicles.

This was also articulated as an option in the Kimber case (above). The judge’s words:

“As he passed stopped traffic on the right, Mr. Kimber ought to have been alert to the potential danger…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.”

Most recently the Court of Appeal in the Ilett case (above) explained:

“Mr. Ilett rode into the intersection at speed when he was unable to see whether it was clear for him to do so because the large vehicle blocked his vision in the same way as it blocked Ms. Buckley’s vision. He was required to slow down or if necessary stop until he could see whether the intersection was clear. His failure to take what would have been reasonable care caused or contributed to the collision and the injuries he suffered.”

As motorists, we have a strong moral duty, in addition to our legal one, to take care not to hurt much more vulnerable road users.But it is also reasonable to expect that vulnerable road users will look after our own safety.

With heightened awareness and care, we can work together to anticipate and eliminate collisions.



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Watch for careless drivers

There’s a sweet, environmental justice when congested traffic slows and cycling commuters are able to gain ground.

But there’s also considerable danger.

This is the third of a four-part series highlighting motorist and cyclist collision scenarios. My hope is that with a heightened awareness of common collision scenarios, motorists and cyclists alike might better anticipate and avoid them.

Two collision scenarios arise when cyclists overtake motorists. The most common is the right turning motorist, clueless about the overtaking cyclist.

There’s no excuse.

We don’t blindly move between vehicle lanes without checking our mirrors and shoulder checking. Why don’t we, as a matter of course, do the same thing before moving across the area of the road commonly occupied by cyclists?

But the law favours motorists. Even in the case of designated bicycle lanes.

And did you know that a cyclist is actually prohibited from overtaking a vehicle unless the cyclist is within their own lane (bicycle lane or otherwise)?

Section 158 of the Motor Vehicle Act contains a general prohibition against passing on the right unless you are within your own lane.

Section 183, which imposes cyclists with “the same rights and duties as a driver of a vehicle," applies that prohibition to them.

Does that sound nonsensical?  Imagine cycling along a highway, on a wide shoulder. Congested traffic slows and then stops. The law technically prohibits you from continuing along, cycling past the stopped traffic.

Our Court of Appeal in Ormiston v. ICBC, 2014 BCCA 276, discusses that issue. A van had come to an unexplained stop on a roadway, leaving about three feet between the passenger side of the van and the fog line.

A 16-year-old cyclist came up behind the stopped van and proceeded to pass along the shoulder of the road. The van abruptly moved to the shoulder, forcing the cyclist to swerve off the roadway to avoid a collision.

The cyclist was found 100 per cent at fault for his own injuries.

The court’s analysis with regard to the prohibition of a cyclist passing on the right:

“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.”

Even if you are within a dedicated lane, permitted to pass on the right, section 158(2)(a) puts an onus on you to ensure that overtaking the slowed or stopped traffic can be done safely.

An example of section 158(2)(a) in action is the case of Nelson v. Lafarge Canada Inc., 2013 BCSC 1552. The cyclist, described as riding “hard and fast”, had been riding alongside a cement truck as they both approached a green light at a Vancouver intersection.

The cyclist was in his own lane, the curb lane. He was seriously injured when he was struck by the front grill of the cement truck as it turned right.

The two had been approaching the intersection side by side, but as the truck slowed in preparation for making the right turn, the cyclist was overtaking the truck, bringing section 158(2)(a) into applicability.

The trial judge found the truck driver ought to have kept a more vigilant lookout, so as to notice the cyclist. And also that as a commercial truck driver he was “…obliged to exercise great caution when approaching, preparing for and executing a right turn on a green light at the intersection…."

But the cyclist was assessed 65 per cent at fault. The words of the trial judge:

“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.”

What lessons can be learned from these scenarios?

Lessons for cyclists: As glorious as it is to overtake vehicle traffic, a clueless motorist might turn into you, or directly across your path. And as unfair as it might seem, the law is against you even when within a designated bicycle lane.

Lessons for motorists: These collisions would be eliminated if motorists simply kept a vigilant look-out for the vulnerable cyclists we share the roads with. Every time you move to your right, check your mirrors and shoulder check, expecting that a cyclist might be there.



Who is responsible?

This is my second of a series, describing scenarios where a motorist and cyclist were each found legally responsible for a collision.

In each scenario, the collision could have been completely avoided had either the motorist, or the cyclist, taken reasonable care.

With a modest jacking up of care behind the wheel, and behind the handlebars, we can eliminate these collisions. Please consider your own driving (and riding) behaviours as you read about the scenarios.

And please adjust.

In this week’s scenario, the cyclist was riding on a sidewalk in clear contravention of section 183(2)(a) of the Motor Vehicle Act, which prohibits (except in certain circumstances) a cyclist from riding on a sidewalk.

But he was not riding recklessly. Rather, he was riding an estimated eight kilometres an hour across an entrance to a gas station.

The motorist was leaving the gas station. Quoting from the Court of Appeal decision of Bradley v. Bath, 2010 BCCA 10: 

“He testified that he stopped his vehicle before crossing the sidewalk, looked to his right and did not see anyone on the sidewalk and looked to his left for at least five seconds until the traffic coming from the east had cleared. He then proceeded onto the sidewalk…”

The trial judge found the motorist 100 per cent at fault:

“The judge held that, in the five-second period described by the defendant in the second scenario between the time he looked to the right and the time he proceeded across the sidewalk, a pedestrian, jogger or rollerblader could have travelled the distance from a point outside of the defendant’s line of sight to the point in front of the defendant’s vehicle.

"The judge concluded that, under this scenario, the accident would not have been caused by the plaintiff riding his bicycle on the sidewalk but, rather, it would have been caused by the failure of the defendant to look to his right before moving his vehicle forward after looking away for a period of time during which a person could have appeared to the right of his vehicle.”

Are you aware of your responsibilities as a motorist, when crossing a sidewalk?  Here is section 176(1) of the Motor Vehicle Act:

“The driver of a vehicle in a business or residence district and emerging from an alley, driveway, building or private road must stop the vehicle immediately before driving onto the sidewalk or the sidewalk area extending across an alleyway or private driveway, and must yield the right of way to a pedestrian on the sidewalk or sidewalk area.”

Effectively, sidewalks are stop signs. You must stop ahead of them and then you must yield to pedestrian traffic.

ICBC appealed. The Court of Appeal decided that the cyclist should share fault.

The crux of the matter was described by the Court of Appeal as follows: 

“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.”

What could the cyclist have done differently? 

The Court of Appeal suggested that he could have made eye contact with the motorist to ensure the motorist had seen him. If uncertain, he could have stopped and waited for the motorist to proceed.

The end result was an equal sharing of liability between the motorist and the cyclist.

Would the result have been different had it been a rollerblader, jogger, or parent pushing a baby buggy who had been struck?

Not breaking the law, they would not have faced a “heightened duty." But of course it would still have been prudent to catch the eye of the motorist before moving in front of the vehicle, or to wait for the motorist to proceed.

What lessons can we learn from this scenario?

Lessons for Motorists: Sidewalks are like stop signs. Stop, look for, and yield to sidewalk users. And please pay attention to changing circumstances around your vehicle when watching for a gap in traffic.

Lessons for sidewalk users: If you have your bum on the seat of a bicycle, the law imposes a heightened duty of care. Regardless, you cannot assume that motorists will notice you.

Before moving in front of a vehicle, catch the motorist’s eye and get their recognition that you’re there.



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Watch for cyclists

Spring has sprung and we can expect more and more cyclists on the roadways.

I am going to share vehicle-bicycle collision scenarios that came up in case-law research I have done to raise awareness about how we might prevent those collisions.

When I say I’ve done case-law research, I mean that I’ve searched for, and read, a number of legal decisions where judges were faced with deciding the liability (who was at fault) aspects of injury claims.

It was interesting reading. There is much more than laying out directions of travel and the rules of the road.

I will be giving only very brief nutshells from often lengthy and detailed analyses and I encourage you to click on the links I provide to get the full picture.

In each of the scenarios I provide, the collision would have been avoided had the motorist met the standard of driving care we reasonably expect of motorists.

If we motorists learn from the scenarios, collisions with cyclists would be drastically reduced.

But correspondingly, each collision would also have been avoided had the cyclist been taking reasonable care for their own safety.

Let’s hope cyclists will learn from the scenarios as well.

In my view, there is a higher moral onus to take care not to hurt others. But, of course, looking after our own safety is incredibly important as well.

The scenarios, which will take more than one column to get through:

  • Motorist colliding with a cyclist who was riding through a crosswalk after activating flashing crosswalk lights;
  • Motorist exiting a gas station, colliding with a cyclist who was riding on the sidewalk;
  • Motorist going same direction as cyclist, turning right across the cyclist’s path; and
  • Oncoming motorist, turning left across the cyclist’s path.

The first scenario is the subject of the decision of Mr. Justice Brown in Dobre v. Langley, 2011 BCSC 1315.

The cyclist, Mr. Dobre, rode his bicycle up to a pedestrian crossing. He stopped, straddling his bicycle, looked both ways and pressed a button to activate flashing crosswalk lights.

He had seen the approaching motorist and reasoned that she was far enough away to give him no reason for concern, particularly with the warning given by the flashing lights.

He re-mounted the bicycle and pedalled slowly through the crosswalk. He determined at the last moment that the motorist was not going to stop and pedalled hard, almost getting out of the way, but the rear wheel of his bicycle was struck as he was approaching the centre line of the road.

The motorist, Ms. Lang, was approaching a well-marked crosswalk. Mr. Dobre was there to be seen. She did not notice the flashing lights and did not become aware of Mr. Dobre’s presence until after her vehicle struck the rear wheel of Mr. Dobre’s bicycle.

This was a classic scenario of looking, but not processing what was there to be seen.

The judge noted that since Ms. Lang had not seen Mr. Dobre at all before impact, it is unlikely she would have seen him had he chosen to walk instead of ride through the crosswalk.

But he reviewed the law and other legal decisions that stand for the principle that:

“Once a cyclist chooses to ride on a sidewalk or crosswalk, they take upon themselves a heightened duty to ensure drivers see them and to ensure their own safety."

 Applying that principle to the facts of the case he considered how Mr. Dobre could have discharged that heightened onus:

“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.”

 The end result was a finding of 15 per cent contributory negligence against Mr. Dobre. As a result, he recovered only 85 per cent of fair, financial compensation for his injuries and losses.

In this scenario, even though having his bum on or off the seat of the bicycle would have made no difference to the outcome, and the motorist completely failed to notice what was going on in front of her, the cyclist was found partially at fault.

Lesson for motorists: Paying constant, active attention to the road ahead of you is critical.

Lesson for cyclists: Follow the strict letter of the law, even if doing so would not make any difference. Take your bum off the seat when proceeding through crosswalks.

Further lesson for cyclists and pedestrians: Regretfully, you really must assume that motorists will be blind to what’s going on in front of you. It takes even more than stopping and activating flashing pedestrian crossing lights to ensure your safety. Please watch carefully to ensure that motorists see you before proceeding.

Next week, I will continue with the other scenarios.



More Achieving Justice articles

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About the Author

Paul Hergott began practicing law in 1995, in a general litigation practice. Of the various areas of litigation, he became most drawn to, and passionate about, pursuing fair compensation for injured victims. This gradually became his exclusive area of practice.

In 2007, Paul opened Hergott Law, a boutique personal injury law firm in the Central Interior, serving personal injury clients from all over British Columbia. Paul’s practice is restricted to acting only for the injured victim, never for ICBC or for other insurance companies.

Paul became a weekly newspaper columnist in January of 2007, when his first column entitled “It’s not about screwing the Insurance Company” was published. 

Please feel free to email or call Paul (1.855.437.4688) with legal issues you might like him to write about in his column, or to offer your feedback about something he has written.

Email:   [email protected]
Firm website:  www.hlaw.ca
Achieving Justice Legal Blog:  http://www.hlaw.ca/category/all-columns/
One Crash is Too Many Road Safety Campaign: www.onecrashistoomany.com
Google Plus:  https://plus.google.com/+HlawCanada/posts
Facebook:  www.facebook.com/personalinjurylawfirm
Twitter:   twitter.com/Hergott_Law



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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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