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Cyclist Riding on Wrong Side of Road Found 25% Liable for Accident

In the recently published case of Deol v. Veach, 2011 BCSC 1437, Madam Justice Dardi considered respective liability of cyclist who collided with a vehicle driven by the defendant in January 2007 as he exited from a Safeway parking lot in Surrey, BC.  The plaintiff was an experienced cyclist who regularly rode his bicycle on the east sidewalk of Scott Road, against the flow of traffic.  At trial the plaintiff stated that he saw the defendant’s vehicle stop on the white line at the exit.   Thinking that it was safe, the plaintiff proceeded into the exitway.  He admitted that he never made eye contact with the defendant.  In cross-examination the defendant conceded that after stopping at the exitway he maintained his focus on the traffic approaching him from the left and never looked right again before moving into the exitway.  He admitted to not seeing the plaintiff prior to the collision despite having an unimpeded view of the sidewalk and further admitted that many cyclists rode on the sidewalk in the Scott Road area.In apportioning liability 75% to the defendant and 25% to the plaintiff, Justice Dardi said the following regarding the liability of the defendant driver:


[23]         It is also well-settled that a breach of the provisions of the MVA in itself does not establish negligence… In order to find negligence the court must find that an individual did not exhibit the standard of care which was required in the circumstances and that the negligence contributed to the accident.


[24]         In Hadden, a case involving a collision between a truck and a cyclist, the court summarized the duty on a driver as follows:


[69]      It is important to remember in cases like the one at bar that the standard of care of a driver is not one of perfection, but whether the driver acted in a manner in which an ordinarily prudent person would act…


[70]      It seems clear that for the court to impose liability on the defendant, the plaintiff must prove either that the defendant did in fact see him or that the defendant ought to have seen him.  If the defendant did not, or should not have, seen the plaintiff, then the defendant could not have been expected to do anything except proceed through the intersection as he did.


[25]          A critical and uncontroverted fact in this case is that the defendant did not see the plaintiff when he looked to the right as he was approaching the Exitway. On his own admission his unobstructed view of the Sidewalk to the north was for some 200 feet. Moreover, after the defendant stopped just east of the unmarked crosswalk at the Exitway, and prior to executing his right turn, he did not look to the right again. The defendant was in clear violation of s. 144 of the MVA, which prohibits driving without due care and attention and without reasonable consideration for others. Although the plaintiff was riding in the direction facing traffic, the Exitway, which was bordered by a sidewalk on both sides, was precisely where a motorist should reasonably have expected to encounter another user of the road…the plaintiff was not in an unexpected location. The defendant was well aware that both pedestrians and cyclists used the sidewalks on Scott Road.


[26]         I find on the totality of the evidence that had the defendant acted in a reasonably prudent manner he would have seen the plaintiff. The plaintiff was there to be seen by the defendant. Had the defendant maintained a proper look-out there is an irresistible inference that the collision would have been avoided. I therefore conclude that the defendant failed to meet the standard of care of an ordinarily prudent driver required in the circumstances, and that his failure to do so was a cause of the accident. In the result I find the defendant negligent.


With respect to the liability of the plaintiff, Justice Dardi said the following:

[29]         It is uncontroversial that the plaintiff was breaching the provisions of the MVA prior to the collision. In contravention of s. 183 he was riding his bicycle on the Sidewalk in a direction facing traffic. It is common ground that there was no bylaw or sign authorizing him to do so. Moreover, he entered the unmarked crosswalk on his bicycle, which also constitutes a contravention of s. 183(2)(b) of the MVA.


[31]         In Bradley v. Bath, 2010 BCCA 10, in considering the liability of a cyclist riding on a sidewalk that collided with a driver of a vehicle exiting a gas station, the Court of Appeal stated as follows at para. 28:


[28]      In my opinion, the plaintiff was at fault, and his fault was one of the causes of the accident.  Contrary to law, he was riding his bicycle on the sidewalk against the flow of traffic.  He saw the defendant’s vehicle moving towards the exit he was approaching.  Rather than making eye contact with the defendant or stopping his bicycle and letting the defendant’s vehicle exit the gas station, the plaintiff assumed the defendant saw him and would not accelerate his vehicle.  In these circumstances, he was at fault for continuing to ride his bicycle across the path to be taken by the defendant’s vehicle in exiting the gas station. [Emphasis added.]


[32]         On the totality of the evidence, and applying the principles articulated in Bradley, I find that the plaintiff failed to take reasonable care for his own safety. Given his heightened duty of care, the plaintiff, after stopping and before attempting to cross the Exitway, should have made some form of eye contact to ensure that the defendant had seen him. By the plaintiff’s own admission the defendant had given no indication to the plaintiff that he had seen him. In short, the plaintiff was at fault and his failure to take reasonable care for his own safety was one of the causes of the accident.


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