The following article was written by David W. Hay (http://www.rbs.ca/lawyers/hay.html). David is a litigator whose preferred areas of practice include personal injury, commercial, entertainment and insurance litigation. He has extensive experience in cycling advocacy work and has advised cyclists and cycling advocacy groups for years.
David's preferred areas of practice are: Personal Injury, Commercial, Entertainment and Insurance Litigation.
Two recent decisions from the Supreme Court of British Columbia illustrate the different approaches the court will take in passing on the right cases, depending on who passed whom first, the cyclist or the driver.
In Rudman v. Hollander the evidence revealed that the plaintiff was injured when he went over the handlebars of his bike after braking hard to avoid colliding with the defendant's vehicle. The plaintiff contended his fall was caused by the defendant slowing his vehicle down abruptly in front of the plaintiff's bicycle, while moving to the right, and effectively blocking the plaintiff from passing between the automobile and the curb. No actual contact occurred but the plaintiff was forced to brake suddenly. His bike was very new and he had never attempted such a stop.
Despite relatively serious injuries, Mr. Rudman's action was dismissed with costs. It appears from the judgment that the plaintiff's lawyer had a difficult time establishing negligence, simply because the plaintiff came up from behind the vehicle, and simply failed to anticipate that the vehicle would stop as quickly as it did. In these circumstances, not only did the plaintiff breach the prohibition against passing on the right of another vehicle except in limited circumstances, the Judge also cited the provision of the Motor-Vehicle Act prohibiting a driver of a vehicle from following "another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and the amount and nature of traffic on and the condition of the highway." In effect, the Judge held that the plaintiff was not entitled to assume that, in the event the vehicle suddenly slowed down, he could pass safely on the right. Interestingly, and perhaps disappointingly for the Plaintiff and his lawyer, the judge also refused to find the motorist negligent for failing to recall passing the plaintiff. With respect, my own view is that a judicial finding that the vehicle did pass the plaintiff (and was thus cognizant of his presence on the roadway) should be enough to establish some degree of negligence in these circumstances.
In another decision, McGrath v. Meise and Greyhound Canada Transportation Corp., the same Judge reached a result more favourable to the cyclist. Elaine McGrath, the 64 year-old cyclist plaintiff, was riding through an intersection on a green light as she was overtaken by a bus. According to the Reasons for Judgment, as the bus passed it contacted her left handlebar causing her to fall and sustain a relatively serious injury. Because the bus was passing the cyclist at the time of the collision, and not the other way around, the Judge held that it did not matter if the bus driver saw the cyclist or not. He stated "if he did not he failed to keep a proper lookout. If he did see her he failed to take appropriate action to avoid colliding with her."
An interesting feature of the McGrath case is that the Judge found the bus driver was in breach of Section 157 of the Motor-Vehicle Act, which prohibits the driver of a vehicle overtaking another vehicle at anything less than a safe distance. In order to apply that provision against the bus driver, his Lordship needed to find that a bicycle is in fact "a vehicle" even though it is not defined as such by the Motor-Vehicle Act. The Judge reasoned "if this were not so, the driver of a vehicle would owe a lesser duty of care to a cyclist than to another driver." The bus driver was found 100% liable for the accident.
These two Supreme Court of B.C. decisions, both rendered in 2005 by the same Judge, also demonstrate that cases are fact driven and depend for their proper result on an analysis to what actually happened to cause the accident. That should be a simple concept but is often very troublesome when human memory is relied on to reconstruct events.