22 Dec Cyclist and Driver Both Responsible for Accident

Ilett v. Buckley, 2017 BCCA 257, is an Appeal from a 2016 judgement in which the driver was found solely at fault for a collision with a cyclist. The driver appealed on the basis that the Trial Judge erred in law in exonerating the cyclist.  She asked the Court of Appeal to apportion the fault for the accident and liability for the damages.

The accident occurred at a T-intersection during rush hour. There were no traffic controls at the intersection except for a stop sign for westbound traffic.  The roadway that both the cyclist and the driver were on had wide paved shoulders. The shoulders were commonly used by cyclists as if they were cycle lanes, but there were no actual designated and marked cycle lanes.

The driving was travelling southbound and northbound traffic was backed up such that it was “stop and go”.  She stopped at the T-intersection, activated her left-turn signal, and remained stopped for a minute or two, waiting for an opportunity to turn left. Ultimately a large northbound vehicle stopped and the driver motioned her through.

The cyclist was riding his bicycle northbound on the shoulder, passing to the right of the slow-moving vehicles.  He saw the large vehicle stopped at the intersection ahead and he saw the gap in the northbound traffic ahead of that vehicle opening.  Even so, he did not apply his brakes to slow his bicycle.

The large vehicle blocked the cyclist and the driver from seeing each other as the driver began her turn and the cyclist closed on the intersection. The driver commenced her turn slowly but, before she could see the cyclist approaching, she accelerated across the northbound traffic lane. Nearly the whole of the front half of her vehicle was across the shoulder when the cyclist crashed into it. His momentum was such that he was carried over the hood of the vehicle and onto the pavement beyond. The impact caused him to suffer various injuries.

The Trial Judge had to determine whether the fault for the collision lay with one, the other, or both.  The Trial Judge recognized that the driver owed a duty to other users of the highway to drive her vehicle with due care and attention, and that the cyclist was duty bound to ride his bicycle in the same way.  Specifically, she was to drive and he was to ride with reasonable consideration for others and at a speed that was not excessive relative to the road, traffic, visibility, or weather conditions.  The Trial Judge then had to determine whether each had discharged their duty by meeting that standard of care.

The Trial Judge concluded that the cyclist “did not fail to take reasonable care for his own safety”. However, the Court of Appeal held that in light of the factual basis on which her reasoning was based, this amounted to an error of law. The Court of Appeal stated that a cyclist who proceeds at speed into an intersection in the circumstances with which this cyclist was faced, without stopping or slowing down, cannot be said to have discharged his duty to ride with due care and attention and with reasonable consideration for others using the highway.

What would have constituted reasonable care on the cyclist’s part – the standard of care he had to meet – would have been the same standard to which the Trial Judge held the driver.  The driver was held to be at fault for the collision because, as she made her left turn, she drove across the northbound lane at speed when she was unable to see whether the shoulder was clear of cyclists. The cyclist rode into the intersection at speed when he was unable to see whether it was clear for him to do so because the large vehicle blocked his vision in the same way as it blocked the driver’s vision. He was required to slow down or if necessary stop until he could see whether the intersection was clear. His failure to take what would have been reasonable care caused or contributed to the collision and the injuries he suffered.

Accordingly, the Trial Judge’s determination that the driver was solely at fault for the cyclist’s injuries could not stand. The Court of Appeal found that fault, and hence liability, should be apportioned equally between the driver and the cyclist.