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.

How About That Right Of Way?

There can be no doubt that cyclists have made progress over the course of the last ten years in British Columbia. Cyclists have seen and have been part of a growing and changing environment. Certainly, the concept of alternative transportation has flourished in many forms and it's real life manifestation in the Province is encouraging.

However, as cycling grows its growth reveals a significant systemic bias with regard to the rules of the road, and the collective perception of those rules. Legislative change has ensured that cyclists enjoy the same rights and obligations of motorists. However, when cyclists are involved in accidents with motor vehicles, a number of allegations and defences continue to be raised against cyclists, when they wouldn't be raised (in my view) if the accident involved two motorists.

As an example, let's begin with the fundamental right enjoyed equally by cyclists and motorists - that is, the basic right of way. In 1952, the Supreme Court of Canada established in the context of a motorist versus motorist case that traffic in the streets would be impossible if the driver of each vehicle did not proceed more or less on the assumption that other drivers would obey the laws of the roadway. In other words, those with the right of way need not anticipate every possibility and are entitled to proceed on the assumption that other drivers will not break the law. With the right of way, users of the roadway are only liable or partly liable for an accident if, once they become aware of someone's disregard of their right away, they fail to take reasonable, evasive action. An example of this would be if you saw someone jaywalking and had ample opportunity to avoid hitting that person but decided to "stand" on your right of way. In those circumstances, the law will not let you proceed.

Because cyclists have the same rights as motorists, they also should enjoy the same principles relating to right of way, as established by the Supreme Court of Canada. Cyclists are not required at law to anticipate, for example, that a left turning driver will not yield the right of way. Similarly, cyclists are not required to anticipate that a driver sitting in his or her car in a parked position would suddenly open the driver's door into the path of the cyclist.

Unfortunately, motorists and insurers continue to cast blame onto cyclists for failing to anticipate various eventualities. They argue that if the cyclist had simply slowed down prior to entering in an intersection, the cyclist might have avoided contact with the left turning driver. Similarly, they argue that the cyclists passing a stopped vehicle ought to anticipate that if there is someone in the vehicle they may open their door. While both positions may seem logical, in hindsight, both are wrong at law and contrary to the law. The law does not require such a high standard of cyclists, despite the fact that cyclists seem to be more vulnerable to injury than motorists. The law is that the rights and obligations are the same as those of motorists, end of story.

It seems to me that by ignoring this principle, which has been applied to motorists since 1952, individuals and institutions place too high a standard of care on cyclists, and correspondingly too low a standard of care on motorists. If the law were simply applied equally, liability in many of these cases would be very clear. Fortunately, the judiciary has been highly cognizant of this principle, but many cases would never get to trial and need judicial intervention were this principle properly applied in the early stages by the parties concerned.