Description

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.

Crossing the Lines

Considerable confusion continues to surround the law relating to cyclists who ride on sidewalks and across crosswalks. It is clear one is not supposed to do that, but what happens when one does, and is involved in a motor vehicle accident?

In a previous article I discussed the rather hopeful decision of Tompkins v. Barden, a case in which the Plaintiff Tompkins was riding her bike on a sidewalk at a pace no faster than that of a pedestrian, when she was struck by a vehicle which had turned left onto a driveway entrance. Neither the cyclist nor the vehicle stopped before entering the driveway and neither could see the other. I say "hopeful" because the trial judge found the motorist 80% liable and the cyclist only 20% liable, on the basis that there was no difference to the standard of care which the Defendant owed to people "whom he should reasonably have expected to be on the sidewalk." In so doing, the trial judge refused to distinguish between a pedestrian and a cyclist travelling at a pedestrian speed.

Unfortunately, that decision was appealed and the Court of Appeal found that the trial judge fell into error in thinking that there was a greater chance that the defendant driver would encounter a quickly moving pedestrian (or slow moving cyclist) than the plaintiff cyclist would encounter a left-turning vehicle at the driveway entrance. The Court of Appeal said "I can find no basis for that opinion in the evidence or the everyday experience of driving. Each occurrence is as likely as the other." Admittedly, the reasoning of the trial judge on this point was difficult to defend. However, it is unfortunate the Court of Appeal substituted a 50/50% split in liability, while at the same time finding (rightly in my view) the Motor Vehicle Act prohibition from cycling on a sidewalk to be "beside the point."

The Motor Vehicle Act also prohibits a cyclist from riding in a crosswalk for purposes of crossing a street. Logically, if a cyclist were riding in a crosswalk at no faster than a pedestrian pace, the Motor Vehicle Act should also be "beside the point." Not quite. In a detailed analysis Madam Justice Ballance dealt squarely with the effect of riding against the rules. Her Ladyship's analysis is in my view the correct one. It goes something like this:

When a cyclist enjoys a statutory right of way (for example, by virtue of walking his or her bike along the sidewalk or within a crosswalk) that cyclist is entitled to proceed almost blindly. That is to say, a cyclist - and any user of the roadway for that matter - is not required to anticipate every possible event. Had Ms. Tompkins been walking her bicycle along the sidewalk, the law would not require her to anticipate the possibility that someone might turn left off the street into her path across a driveway entrance. With the right of way, she would be entitled to proceed with virtual legal immunity. The same as the case when a cyclist walks his or her bike across a crosswalk. The statutory right of way allows them to proceed without the legal obligation to anticipate wrongful conduct. Whilst enjoying a statutory right of way, one is only liable if one becomes aware of another's disregard of that right of way, and responds unreasonably.

However, once the cyclist loses the right of way, by riding on the sidewalk or across a crosswalk, he or she then is in effect legally required to anticipate every eventuality, and a failure to do so may result in that cyclist bearing a portion of the liability. That apportionment will, of course, depend on the circumstances of each case. The severity of injury which occurs is, strictly speaking, not relevant to a determination of fault as between the parties.

In her reasons for judgment, Madam Justice Ballance placed emphasis on that the crosswalk which was not a place "where it could reasonably be said that a motorist ought to be surprised by the cyclist's presence. On the contrary, a marked crosswalk is precisely the place where a motorist could reasonably expect to encounter another user of the road." She found that the motorist was oblivious to the presence of the cyclist and took no evasive action to avoid the collision. The motorist was found 85% at fault. Ballance J. went on to reason that the cyclist was 15% at fault for failing to keep a proper lookout and failing to proceed cautiously in circumstances where he did not have the right of way. She also found that the cyclist saw the approaching vehicle well in advance and that he ought to have been wearing a helmet. His failure to wear one was found to have contributed to the extent of his injuries.

Despite the analysis of Madam Justice Ballance, motorists and their insurers continue to take the position that a statutory breach is tantamount to a fatal sin which should completely disentitle a cyclist to compensation for injuries.

The better approach integrates a consideration of the statutory rules and common law principles. While this may result in a form of compromise, it is a process based on reason as opposed to the arbitrary application of rules.