CONTRIBUTORY NEGLIGENCE

By February 8, 2018Articles

CONTRIBUTORY NEGLIGENCE (Bicycle Accident)

Article by Peter Trieu, a personal injury lawyer in Calgary, Alberta

accident lawyers Calgary Peter Trieu

Assume that Mr. Plaintiff is cyclist who gets injured when rides his bicycle through a marked crosswalk without dismounting his bicycle.  We recently had an opportunity to evaluate this type of claim.  In assessing the contributory negligence of this claim, we began by reviewing the relevant portions of the Contributory Negligence Act.  We then considered and prepared the relevant Canadian case law summaries, and listed below is a small sample of the cases we reviewed:

Cases:

Case Liability Apportionment
Pelletier v. Ontario 2013 CarswellOnt 15422, 2013 ONSC 6898 (60 (D), 40 P) Defendant

60%

Plaintiff

40%

 

The Plaintiff was riding his bicycle through a pedestrian crosswalk at night when he was struck by a police cruiser.  The Plaintiff suffered significant physical injuries, and continued to suffer through ongoing psychological sequelae as result of the collision.

In citing section 193 (1) of the Ontario Highway traffic act, the court indicated that it was not the Plaintiff’s onus to prove that the Defendant was negligent; rather, a reverse onus applies when damages sustained by a person as a result of a collision with a motor vehicle.  The court indicated that the onus was on the Defendants to prove, on a balance of probabilities, that the collision did not arise from the Defendant’s negligence (para 5).

The court found that the Defendant police officer had the right-of-way entering the intersection because the Plaintiff rode his bike across intersection (para.76).  However, the court also stated that “having the right-of-way does not rebut the presumption of negligence” and quoted Justice Cartwright in the case of Brownlee v. Harmon [1952] SCJ No. 56 at para 46:

“the duty of a driver having the statutory right of way has been discussed in many cases.  In my opinion it is stated briefly and accurately in the following passage in the judgment of Aylesworth J.A., concurred in by Robertson C.J.O., in Woodword v. Harris [1951] OWN 221 at p. 223: “Authority is not required in support of the principle that a driver entering an intersection, even although he has the right of way, is bound to act so as to avoid a collision if reasonable care on his part will prevent it.  To put it another way: he ought not to exercise his right of way if the circumstances are such that the result of his so doing will be a collision which he reasonably should have foreseen and avoided”.

At paragraph 77, the court stated that the Defendant officer:

  1. should have proceeded more cautiously into the intersection;
  1. the fact that he officer did not have sufficient time to react did not rebut the presumption of negligence– and that the insufficient reaction time was due to the officer’s:
    1. lack of caution in entering the intersection;
    2. excessive speed;
    3. and failure to keep a proper lookout for others using the road
  1. was aware that it was a busy Friday night at the time of the accident, and the intersection would have been frequently used.

 

Because of the above factors, the court opined that the officer created heightened danger given his lack of caution and speed in entering the intersection (para.77).

However, the Plaintiff was not without fault for the following reasons (para 78):

  1. he rode his bike straight onto the intersection when it was quite dark;
  1. he was wearing dark clothing without a reflective surface or a light, other than the two strips on his pedals that may or may not have been visible;
  1. he did not have a light contrary to the provisions of the HTA;
  1. although he is adequately visible in the intersection, a light would have made him more visible after he emerged from the dark area before the collision, which would have likely given the officer additional time to react to the Plaintiff’s presence;
  1. he was riding his bike in a crosswalk, traveling at a rate of speed that gave the Defendant officer little time to react (para 79)

 

Accordingly, the court apportioned liability to 60% to the Defendants, and 40% to the Plaintiff.

Case Liability Apportionment
Callahan v. Kim 2012 CarswellBC 3340, 2012 BCSC 1615

 

Defendant

85%

Plaintiff

15%

The Plaintiff was riding a bicycle when he stopped to press a pedestrian control button and waited for a walk signal.  The Plaintiff saw a vehicle slowing down as it approached the crosswalk on a red light.  Assuming that the vehicle would come to a complete stop, the Plaintiff rode his bike onto the crosswalk, attempted to make eye contact with the driver, but could not because the driver was looking away.  The Plaintiff continued across the intersection anyway, and when he realized that the Defendant driver was moving into the intersection, the Plaintiff pedaled harder, could not clear the Defendant’s vehicle, and a collision occurred (para 8).

The court cited from the case of Hadden v. Lynch [2008] BCSC 295, which was also a case involving a collision between a vehicle and cyclist, and described the duty of the driver as follows [para 15 of instant case, para 69-70 of Hadden]:

  1. the standard of care of a driver is not one of perfection, but whether a driver acted in a manner in which an ordinarily prudent person would act;
  1. in order for the court to impose liability on the Defendant, the Plaintiff must prove either:
    1. the Defendant did in fact see him; or
    2. the Defendant ought to have seen him
  1. “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”.

 

In assessing whether the Defendant failed to meet the standard of care, the court considered the following factors (para 18):

  1. the Defendant was proceeding against red light;
  1. the Plaintiff was in a marked crosswalk with a pedestrian walk sign in green light in his favor;
  1. although the Defendant acted within the law in making a right turn on a red light, the Defendant had a duty to give way to a user of the crosswalk;
  1. although the Plaintiff contravened the motor vehicle act by not dismounting and walking his bicycle across the street, and therefore did not have the statutory right of way, the court held that he was nevertheless, a user of the crosswalk.

The court found that the Defendant’s failure to check again to his right before starting his right turn was a direct cause of the accident (para.19).

Conversely, in determining whether the Plaintiff was contributorily negligent, the Court considered whether:

  1. the Plaintiff took reasonable care for his own safety; and if he did not,
  2. whether that failure was one of the causes of the accident

the court indicated that because the Plaintiff was riding his bicycle in a crosswalk, he had a heightened duty to ensure his own safety (para.23).

 

The court found:

  1. the Plaintiff exercised a considerable degree of care for his own safety, because despite having a green light, he:
    1. stopped at the intersection;
    2. pressed the pedestrian walk button;
    3. waited for the walk signal; and
    4. looked to his left for traffic, and observed the Defendant’s car slowing down (para 24)
  1. However, the court also found that the Plaintiff failed to take reasonable care for his own safety, especially since the Plaintiff did not make eye contact with the driver to ensure that the driver saw him (para 25);

The court rejected the Defendant’s argument that liability should have been apportioned equally, because the facts of the cases cited by the defence significantly differed from the facts of the instant case:

  1. In Bradley, the Plaintiff was riding his bike on a sidewalk as he approached a gas station, whereby the Defendant drove out of the gas station, and across the sidewalk without stopping. The Plaintiff saw the Defendants’ vehicle moving towards the exit, but rather than stopping his bicycle and letting the Defendant’s vehicle exit, or making eye contact with the Defendant, the Plaintiff assumed that the Defendant saw him and would not accelerate his vehicle.  The Court of Appeal found the Plaintiff to be at fault and apportioned liability equally (para 31);
  1. In Hadden, the Plaintiff was entirely at fault for a collision when he rode his bicycle into a crosswalk with the green light without stopping, and collided into the side of the truck that was already in the crosswalk

Rather, the court referred to the case of Dobre – where the Plaintiff cyclist stopped before entering the marked crosswalk, looked left and right, and pushed to activate the pedestrian warning light.  The Plaintiff in that case pedaled slowly across the intersection, was close to the centre of the road when the Defendants vehicle struck the rear wheel of the Plaintiffs bicycle.  In this case, the Plaintiff check to his left, observed a car approaching, but assumed it poses no hazard to him.  Consequently, liability was apportioned to 85% to the driver and 15% to the cyclist (para 33)

Accordingly, the court stated that the Defendants conduct in failing to observe the Plaintiff,  and starting a turn without looking to the right was far more blameworthy than the Plaintiff’s failure to make eye contact – and concluded that liability should be apportioned 85% to the Defendant and 15% to the Plaintiff (para 34).

Case Liability Apportionment
Hunstad v. Cormier 2011 CarswellBC 3889, 2011 BCSC 1881 Defendant Plaintiff

100%

The Defendant driver of vehicle struck the Plaintiff while she was riding her bicycle.

At para 59, the court summarized the basic principles for both the Plaintiff and Defendant:

  1. each of us has a duty to look out for our own safety;
  2. each of us has a duty to look out for the safety of others, in the sense that we must take care to ensure our actions do not cause them harm

Ultimately, the court found that the Plaintiff was 100% liable for the following reasons:

  1. The weight of independent evidence supported a finding that the Defendant collided with the Plaintiff two lengths or more south of the crosswalk (para 79); thus, the court could not find evidence that the Plaintiff was in the crosswalk itself (as in para 54), although the court accepted that Plaintiff was in the area of the crosswalk for a portion of time. However, the court found that the Plaintiff left the crosswalk, and in doing so, headed for the sidewalk and across the path of the Defendants vehicle.  (Para 78).
  1. The court found that if the Plaintiff was in fact in the crosswalk, the Defendant would have been able to stop his vehicle and avoid the collision.
  1. The Defendant exercised caution as he approached the intersection, had the right of way, and his speed was reasonable as demonstrated by how quickly he stopped his vehicle upon impact (para 81).
  1. However, the court found that the Plaintiff was nowhere to be seen as the Defendant approached the intersection. (para 83);

Accordingly, the court found the Plaintiff 100% liable for the collision.

Case Liability Apportionment
Deol v. Veach 2011 CarswellBC 3045, 2011 BCSC 1437 Defendant

75%

Plaintiff

25%

The Plaintiff was a cyclist traveling southbound on a sidewalk when he was involved in a collision with the vehicle driven by the Defendant at an exit way of a grocery parking lot.

The court found that:

  1. the Defendant did not see the Plaintiff when he looked to the right as the Plaintiff was approaching the exit way (para.25)
  1. the Defendant was well aware that both cyclists and pedestrians use the sidewalks (para 25);

Ultimately, the court concluded that if the Defendant had acted in a reasonably prudent manner, he would have seen the Plaintiff, and the court found an irresistible inference that the collision would not have occurred.  The court ultimately concluded that the Defendant was negligent because he failed to meet a standard of care and thereby caused the accident (para 26).

In considering whether the Plaintiff failed to take reasonable care for the Plaintiff’s own safety, and whether to do so was one of the causes of the accident, the court found the Plaintiff:

  1. breached the provisions of the legislation by riding his bicycle on the sidewalk in a direction facing traffic;
  1. entered an unmarked crosswalk on his bicycle (para 28)

However, although the Plaintiff stopped his bicycle before attempting to cross the exit way, the court found the Plaintiff had a heightened duty of care, and failed to take reasonable care for his own safety because he did not make a form of eye contact to ensure that the Defendant had seen him (para 32).

In apportioning liability, the court referred to the following principles and considers:

  1. “the extent of blameworthiness, that is the degree to which each party is at fault, and not the degree to which each party’s fault has caused the loss” Hynna v. Peck [2009] BCSC 1057, para 34
  2. (Alberta Wheat Pool v. Northwest Pile Driving, 2000 BCCA 505 (para 45-47): The respective blameworthiness of the parties, rather than the extent to which the loss may be said to have been caused by the conduct of each”  Fault or blameworthiness evaluates:
    1. the parties conduct in the circumstances; and
    2. the extent or degree to which it may be said to depart from the standard of reasonable care.
  1. Fault may vary from:
    1. extremely careless conduct, by which the party shows a reckless indifference or disregard for the safety of person or property, whether his own or others
    2. down to a momentary or minor lapse of care in conduct which, nevertheless, carries with it the risk of foreseeable harm”

Accordingly, the court apportioned liability 75% to the Defendant and 25% of the Plaintiff (para 37) and found the Defendant more blameworthy because he:

  1. failed to keep a proper lookout;
  2. failed to observe the Plaintiff who is there to be seen, and executed a right turn while focusing on his left

As the cases involving bicycle collisions above illustrate, a Plaintiff’s contributory negligence depends on the facts of each case.

The lawyers at Kubitz & Company are honored to represent injured Plaintiffs.  We do not act for insurance companies.  Call us at 403-250-7100 for a consultation with one of our lawyers if you have been injured in an accident and are thinking of, or are unsure of whether you ought to pursue a claim or not.

Article by Peter Trieu, a personal injury lawyer in Calgary, Alberta.