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.

There To Be Seen

I recently fell to wondering what would I say as a bike injury lawyer to the cycling community if I could only give one more piece of advice before being taken away to a desert island with no means of further communication. I realized that the advice could not be too general. "Rid the world of all risk of traumatic injury" would be about as useful as "be careful." Any piece of advice, to qualify as the winner, would need to be practical, specific, comprehensible, but imbued with the spirit of ultimate harmony between the cyclists and drivers (at least until automobiles are extinct as a means of transportation).

I then personalized these various pieces of advice and made them contestants in a competition.

The winner would not only need to possess all of the previously mentioned qualities, but would be the kind of advice which, if heeded, would substantially reduce the number of accidents between cyclists and automobiles in British Columbia. Then it hit me - "Be Visible At Night" would be the clear winner. For there is nothing which puts cyclists in worse light (excuse the pun) than the failure to use one at night. SS. 183 (6) (14) of the Motor-Vehicle Act states:

(6) A cycle operated on a highway between ½ hour after sunset and ½ hour before sunrise must have the following equipment

(a) a lighted lamp mounted on the front... capable of displaying a white light visible at least 150 m in the direction the cycle is pointed

...

(14) A person must not operate a cycle

(a) on a highway without due care and attention or without reasonable consideration for other persons using the highway

Note the language in the foregoing provisions. The duty on the cyclist relates not to using a light sufficient to light the cyclist's path, but sufficient to be seen by someone else at a distance of 150 metres. The corresponding general duty is to use due care and consider other person using the highway. These are provisions which are written from the perspective of persons other than the cyclist. Thus, the legislation requires cyclists to look beyond their own needs and integrate themselves into the broader community.

At this point I know what some of you are thinking - "even if I can't be seen, I'm not making any noise, I'm not polluting, I'm very low impact, and I'm just coming home from my friend's house with a short distance to travel, why can't everybody just be cool and leave me alone...?" The fact is that everyone is not cool and to leave you alone they need to first see you.

In a recent case called Anderson v. Routbard, Madam Justice Humphries dismissed an action by a cyclist in Victoria on the basis that he could not contend he was "there to be seen" when he was riding his bicycle in the dark, wearing dark clothing, without a head lamp, and had consumed "six glasses of beer and smoked part of a joint of marijuana" prior to the accident. Interestingly despite everything else the cyclist did wrong, the overriding consideration of the trial judge was lighting or the absence thereof.

To me the reason that makes this advice formidable and perhaps the winner of the competition is that it relates to self-respect as a cyclist. If cyclists truly want to participate in the creation of a new social spirit in which the role of the cyclist is valued, it seems to me the highest priority must be visibility. Concealing oneself stealthily, while perhaps having some subversive appeal, is not proud and is certainly not safe. Mr. Anderson discovered that the hard way. Of course, the other problem is theft proof lights, i.e. a whole other story...

Safety demands that we not only follow the law, but that we acknowledge that drivers often do not see us at all, particularly at night. If cyclists adhere to the lighting requirements of the Motor-Vehicle Act, they assume a much more robust legal position when it comes time to investigate liability. In short, the optics are better all around.