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.

It's Not All Good

If issues in cycling litigation were colours in the rainbow, speed would most certainly be a primary colour. A search of the Judgments Database demonstrates just how important a factor speed is in personal injury litigation. Even with the search limited to the year 2005, the word "speed" produces 125 cases matching the query.

No colour of the rainbow is more misunderstood. To this extent, speed would have to be considered the colour red, because of the flags it raises - often unjustly, from the perspective of cyclists.

Let me slow down and provide an illustration of this point. I recently had conduct of a very sad case involving a catastrophic injury to my client, a 50 year old cyclist. He was training for a triathlon at the time of the accident in the District of Pitt Meadows. He was southbound on Harris Road, riding in the designated bike lane, when he was struck by a left turning motorist. For purposes of the present discussion, suffice to say he was travelling at or around the speed limit, though his evidence was he had stopped pedalling to slow down just prior to the intersection. Despite travelling at or under the speed limit, the insurers for the motorist and municipality argued that the cyclist was partly liable for his own injuries because he was travelling too fast in the circumstances, and that he ought to have anticipated the motorist might turn left into his path.

As we all know, the rights and obligations of cyclists and motorists are the same under the provisions of the Motor Vehicle Act. One would infer that a cyclist is entitled to travel at the speed limit. In theory this is true. In practice, that is to say, in reality, insurers for motorists, looking through a retrospectivescope, often argue that if the cyclist had not been going so fast, "this might not have happened". Leaving aside the speculative nature of any argument based on hindsight, the general problem with this line of thinking as it applied to the case I was involved in, is that the cyclist was travelling at a speed specifically authorized by the defendant (that is that the posted speed limit), and the cyclist's speed did not "cause" the accident in a legal sense.

The accident was caused by the motorist failing to keep a proper lookout and failing to yield the right of way to the cyclist. The cyclist would only be liable if, once he became aware of the motorists' disregard for his right of way, he failed to take reasonable, evasive measures.

The law is well settled that there is no general duty on any user of the roadway to foresee another users' imprudence. There is nothing unreasonable about an expectation that one's right of way will be observed. There is no obligation to anticipate every eventuality, and the law allows cyclists to assume drivers will obey the rules of the road.

In this particular case, the cyclist was well into the intersection when the motorist turned, and it could not be suggested that the cyclist had any opportunity to avoid the accident. It is true that if the cyclist had been travelling at a slower speed, the accident might not have happened. It is also true that if the cyclist had decided to not ride his bicycle that day, the accident might not have happened. Neither instance amounts to contributory negligence. Happily, contributory negligence was abandoned in this particular case and the litigation was resolved.

Unhappily, speed continues to play a major role in serious motor-vehicle/bicycle accidents. Even if speed is not a relevant factor in the assessment of fault, it often correlates to the severity of injury. As I have said before, and hasten to say again in this context, one's legal rights provide little solace in a crowded orthopaedic trauma unit. Accordingly, as your friendly neighbourhood bike lawyer, I offer two mantras for the New Year:

• It is NOT "all good";
• Slow down and chill.