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.

Responsibility for Vulnerability

According to the Canadian Institute for health information, motor vehicle collisions are the leading cause of death in children under 5. A small but unacceptable portion of those fatalities involve young cyclists. Is there a legal way to increase driver vigilance, in light of these alarming statistics? The Motor Vehicle Act provides that the rights and obligations of cyclists are the same as those of motorists. While this seemed like a good legislative start at the time, insurers often offer this as a defence to cyclists' injury claims. The thinking is that everyone on the road is equal at law; a kind of legislative dog-eat-dog. Clearly this wasn't the spirit behind the legislation, but insurers are not typically concerned with spiritual intent.

The heart of the problem is vulnerability to injury, and the laws' relative silence in that regard. Cyclist's vulnerability has been considered by the Courts, but only as it relates to the cyclists' duty of care, not the motorists.

In a case called Pacheco, a Trial Judge found a cyclist 50% responsible for a collision with a motor-vehicle, largely on the basis that the cyclist ought to have been more vigilant, given his relative vulnerability. That decision was overturned by the Court of Appeal, which held that a cyclist's vulnerability should not increase a cyclist's duty of care to himself or to herself. But there is still no authoritative precedent for the proposition that motorists owe an increased duty of care to the cyclist, given the risk of injury arising from a negligent act or omission. A few judges have made incidental remarks on the issue of vulnerability in relation to the duty of care owed by motorists, but the legislature has not addressed this subject meaningfully. Whether or not it should is a matter of politics, not law, but the catastrophic consequences of motor-vehicle/bicycle accidents in this country is something which must concern us all.

Legislative reform must reflect the needs of the community. it can take many forms, from the simple addition of more provisions relating to specific conduct, to reversing the onus of proof in accident claims, requiring the motorist to establish no negligence when an accident with a cyclist occurs. The range of choices is enormous - some measures are modest, others extreme. Clearly the growth in interest in cycling must be acknowledged at a political level for the paradigm to shift, but the community as a whole must accept responsibility for the carnage and respond appropriately and reasonably.