IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120509

Docket: 100786

Registry:
Victoria

Between:

Dixon Ormiston by
his Litigation Guardian, Scott Ormiston

Plaintiff

And

Insurance
Corporation of British Columbia

and John Doe

Defendants

Before:
The Honourable Mr. Justice McKinnon

Reasons for Judgment

[1]            
On November 6, 2009, 16-year-old Dixon Ormiston tumbled from his bicycle
while descending a steep hill along Lindholm Road in the District of Metchosin
near Victoria, BC. He sustained serious injuries for which he seeks
compensation.

[2]            
The plaintiff alleges that he was forced into a concrete abutment by the
actions of a vehicle which veered suddenly into his path of travel just as he
was passing it, causing him to be ejected from his bicycle over the abutment
and down a ravine onto rocks below.

[3]            
Neither the driver nor the vehicle was ever identified and thus the
action was commenced against the Insurance Corporation and “John Doe”.

[4]            
Several defences advanced in the pleadings were abandoned at trial
leaving only a defence that the actions of this unidentified driver did not
cause or contribute to the plaintiff’s ejection from his bicycle, rather the
plaintiff was the author of his own misfortune. Alternately, if the vehicle
somehow was partly responsible, the plaintiff also bore responsibility by way
of contributory negligence.

[5]            
Pursuant to the order of Master McCallum, made June 22, 2011, the issue
of liability was severed from the issue of damages. I heard only the issue of
liability.

[6]            
The task of the Court is to assess the evidence and come to a
determination as to whether the injuries were caused by the actions of an
unidentified driver, and whether the plaintiff contributed in any way to the
losses he has suffered.

[7]            
The defence submits that on all the evidence proffered by the plaintiff,
causation for his injuries lies solely with him. It is alleged that the
plaintiff was in breach of various provisions of the Motor Vehicle Act, R.S.B.C
1996, c. 318 that the unknown driver was entitled to use the portions of
the road in issue, and that the plaintiff exercised poor judgment in passing
the vehicle when he ought to have known it was dangerous to do so.

[8]            
The plaintiff of course was an important witness who testified at some
length and who was vigorously cross-examined.

[9]            
According to the plaintiff, he left home about 7:45 a.m. for school on
his bicycle, intending to meet up with friends along the way. There was nothing
unusual about his routine that morning. It had been raining but by the time he
left home the rain had stopped, leaving the roads wet. It was light out, no fog
and high cloud.

[10]        
The plaintiff was wearing a helmet, some reflective clothing and had an iPod
with ear phones that he had turned on to listen to music while he pedalled his
bike. He said that the volume was low enough that he could hear any traffic
approaching from his rear.

[11]        
I heard evidence about the plaintiff’s experience as a cyclist and his
knowledge of bicycles generally and I am satisfied that he was an experienced
rider, familiar with both his bicycle and the area in which he was cycling.

[12]        
His route that morning was to turn right at the end of the family
driveway onto Lindholm road which runs about 2 ½ kms to Happy Valley Road. At
that point the Galloping Goose trail intersects and parallels Happy Valley
Road.

[13]        
Lindholm is a winding twisting paved road with one lane of travel in
each direction. On turning onto to it, the plaintiff had a good uphill climb to
the crest near Bellman road where it started to descend. The plaintiff
described this descent as “the biggest hill on my ride”. The ride from home to
meeting with friends at the Galloping Goose trail takes about 15 minutes and
then another 15 minutes to reach the school, Belmont High. School commences at
8:50 a.m. and thus given the times provided by the witnesses, the plaintiff was
not late and had plenty of time to reach his school that morning.

[14]        
Just prior to descending this last hill, the plaintiff said a van type
vehicle with a square shape which he described as either a blue/green Safari,
Chevy Astro or perhaps a Ford Explorer passed him. He felt it was a 90s type
vehicle with tinted back windows. He did not see the occupants. This vehicle
passed him and travelled some distance before he noticed brake lights coming on
and off. According to the plaintiff, to this point it “all seemed perfectly
normal”.

[15]        
There is a warning sign as one descends this hill indicating a series of
curves and then four warning signs as one approaches each curve. It was at the
third warning sign that the plaintiff caught up with the vehicle that had
inexplicably slowed almost coming to a complete stop. The plaintiff said that
at that point the vehicle was close to the centre line leaving lots of room for
him to pass on the right. By the time he elected to pass, both bicycle and
vehicle were just past the fourth warning sign and almost to the bottom of the
hill where the road straightened out.

[16]        
The defendants submitted that the plaintiff ought to have come to a
complete stop and/or waited for this vehicle rather than passing it. It was
also suggested that the plaintiff was impatient and chose to pass when a wiser
person might have watched and waited, especially since the downhill ride was
almost completed. To his credit, the plaintiff admitted that he was often times
impatient, but (inferentially at least) not on this occasion.

[17]        
According to the plaintiff it all happened in a split second. He saw
that the vehicle was nearly stopped for some reason but that there was plenty
of room for him to safely pass on the right and so made the decision to do so. Inexplicably,
just as he was passing, he said the vehicle veered to the right causing him to
lose control, probably strike the cement barrier and tumble off his bicycle,
over the barrier where he took two stumbling steps and then went over the
embankment landing on rocks below.

[18]        
On the plaintiff’s evidence, when he determined to pass, the vehicle was
close to the centre line, leaving him three feet or so to pass with an
additional three feet between the fog line at the edge of the travelled portion
and the cement abutment. Just as he commenced the pass, it veered over in its
travelled lane squeezing him to the right where he lost control.

[19]        
Mr. Ormiston said that the vehicle veered so far over from the
centre line that it actually went into the area between the fog line and the
cement abutment, and that is what caused him to lose control. His recollection
was that the vehicle suddenly went from a position near the centre line over
the fog line by somewhere between 18 and 24 inches. Given the earlier evidence
that the distance between the fog line and the cement barrier was about three
feet, this would leave only about one foot to 18 inches of space for the
plaintiff to negotiate the rest of his manoeuvre.

[20]        
I am satisfied that the vehicle was at or near the centre line of the
road when it came almost to a stop for some unknown reason. Mr. Ormiston
was then just outside the fog line in the vehicle’s lane of traffic. Since he
had about three feet between the vehicle and the fog line with an additional three
feet between the fog line and the cement abutment, he considered it safe to go
by on the right. It was only as he got up to the rear passenger door area of
the vehicle that it made this sudden veering movement to the right.

[21]        
The plaintiff could provide no reason why the driver slowed almost to a
stop, other than to speculate that he/she might have slowed to view eagles
circling overhead as a pair of nesting eagles are regularly seen at that
location.

[22]        
Various statutory provisions were cited by both plaintiff and defendants.

[23]        
The plaintiff cited sections 144, 144(1)(b), 145(1), and 151 of the Motor
Vehicle Act. He also cited section 249 of the Criminal Code, R.S.C.
1985, c. C-46, which defines “dangerous driving”.

[24]        
In my view the applicable statute is the Motor Vehicle Act and
the applicable sections are sections 144, 144(1)(b) and 151. These refer to
driving without due care and attention, driving without reasonable
consideration for others and failing to maintain a vehicle in the proper lane
of travel.

[25]        
Counsel for the defendants reminded me that a cyclist has the same
duties as a motorist (section 183(1)) and that in the circumstances he was in
breach of sections 158(1) & (2) and section 119(1) of the Motor Vehicle
Act.

[26]        
Section 158(1) limits the ability of a “motorist” to pass on the right. It
is permissible only in three specific instances, none of which existed at bar. Even
when permitted, the move cannot be made if it would be “unsafe” to do so and if
the movement caused the vehicle to “drive off the roadway”. “Roadway” is
defined in section 119(1) and does not include the shoulder. Section 158(2)
stipulates that a motorist must not overtake or pass if the movement
cannot be made safely, or if it involves driving off the roadway. The latter,
says defence, makes it clear that the plaintiff was not entitled to use the
shoulder, at any point, or for any purpose, in attempting to pass.

[27]        
The defendants cited Fabellorin v. Peterson, [1994] B.C.J. No. 628
as a complete answer to the plaintiff’s case. At para. 13 the Court
stated:

Section 160 [now s. 158] imposes a heavy onus on the
driver of a vehicle attempting to pass other vehicles on the right. More
especially is this so when the vehicles ahead have stopped or slowed on the
roadway other than at an intersection or a crosswalk when there is no apparent
reason for their doing so. The very fact that they have done so should alert
the driver of the overtaking vehicle, intending to pass, that there must be
some reason for the drivers ahead of him to have acted as they did and this
should have alerted the overtaking driver to exercise extra caution to ensure
that he or she can pass on the right safely.

[28]        
In Smeltzer v. Merrison, 2012 BCCA 13 the B.C. Court of Appeal
has recently reiterated the responsibilities devolving upon a cyclist who
passes on the right. At para. 13 the Court stated:

13. Dickson, an appeal of a cyclist’s conviction
for passing on the right, contains the most complete discussion of s. 158
to which we are referred. I would respectively endorse what was said there. Section
158(1) prohibits one vehicle passing another on the right:  “The driver of a
vehicle must not cause or permit the vehicle to overtake and pass on the right
of another vehicle….”  There are only three exceptions. Essentially, passing
on the right is permitted when the overtaken vehicle is turning left, when
passing on a laned roadway, or when passing on a one-way street room permits. A
“laned roadway” is defined. It means a road that is divided into two or more
marked lanes for vehicles proceeding in the same direction. The exceptions are
qualified by subsection (2) which prohibits any passing on the right when it
cannot be done safely or by driving off the road.

14.       Despite the recognition of a de facto lane
in MacLaren, I do not consider the concept can afford any further
exception to the three for which s. 158(1) provides…

15.       …If it were otherwise, drivers would be entitled
to pass on the right wherever the road is sufficiently wide for two vehicles to
pass. Drivers do not expect to be passed on the right when they are not
travelling on a road with more than one designated lane. They generally expect
to be able to turn off of the road to their right, whether into intersecting streets
or driveways, or to pull over to the side of the road or off the road
altogether without being obstructed by vehicles passing to their right.

[29]        
In Janzen v. Heather, 2008 BCSC 229, a moped operator claimed
that the driver in front of him came to a stop, failed to signal her intention
to turn and, therefore, caused him to drive into the rear of her vehicle. Rogers
J. made this comment about that position:

33.       The plaintiff’s responsibility for the collision is
obvious. He was travelling too closely behind the defendant, and he was not
paying sufficient attention to what the defendant was doing. On his own
evidence, and accepting for the moment that the defendant did not apply her
turn signal, the plaintiff was aware that some change was happening with the
defendant’s course of travel. He appreciated that she was slowing down. He said
that he was prepared to stop if she stopped. In fact, the defendant’s car did
effectively come to a stop relative to the plaintiff’s path of travel. Her
right turn brought her car across his pathway and formed a barrier to his
progress. I find that the plaintiff was following so closely behind the
defendant’s car that he could not have stopped behind the defendant. In fact,
he was so close behind the defendant that if she had stopped without turning,
he would have come abreast of her car before he, too, braked to a halt.

35.       The key issue in this case is whether the defendant
had a duty to perceive that the plaintiff was behind her and was so close to
the rear of her vehicle that she could not make her turn without jeopardizing
his safety.

40.       …Whether the defendant applied her turn signal or
not, it was the plaintiff’s duty to stay far enough back from the defendant’s
car to respond safely to whatever the defendant did. The defendant did not owe
a duty to the plaintiff to yield or give way to him. The fact that the
defendant did not see the  plaintiff does not, therefore, give rise to a breach
of a duty of care. The plaintiff was solely responsible for the collision.

[30]        
It seems very odd to me to lump cyclists with motorists. Anyone with a
passing knowledge of cycling and driving can appreciate that in certain
situations a cyclist could safely perform manoeuvres that are prohibited under
the Motor Vehicle Act. This situation strikes me as a case in point.

[31]        
The defence says Mr. Ormiston ought to have stopped and waited for
the vehicle to do whatever it was going to do?  What if the driver was stopped
for five minutes while he/she watched eagles?  Is Mr. Ormiston obliged to
wait in that situation?  If he can’t pass on the right then presumably he has
to negotiate a pass on the left which would expose him to oncoming traffic, a
much more dangerous move on this winding road than passing on the right.

[32]        
The simple act of dismounting from his bicycle and walking it past the
vehicle would transform Mr. Ormiston from a “motorist” to a pedestrian,
permitting different conclusions in respect to the duty owed by the driver.

[33]        
Each party claims the benefit of the “but for” test. In Resurfice
Corp. v. Hanke, [2007] 1 S.C.R. 333 the Supreme Court of Canada affirmed
this test for determining causation. At para. 21 the Court stated:

21.       First, the basic test for determining causation
remains the “but for” test. This applies to multi-cause injuries. The plaintiff
bears the burden of showing that “but for” the negligent act or omission of
each defendant, the injury would not have occurred. Having done this,
contributory negligence may be apportioned, as permitted by statute.

[34]        
The plaintiff claims that “but for” the sudden veering movement of the
driver he could have safely passed. The defendants say that “but for” the
plaintiff passing when he was not permitted to do so, no injuries would have
been sustained.

[35]        
The various cases to which I have referred suggest that a cyclist bears responsibility
for a collision where:

A.       The
road is one lane in the direction of travel and he/she passes on the right at
or near an intersection.

B.       The
cyclist is alerted to actions of a lead vehicle, such as slowing, but chooses
to pass regardless.

[36]        
This unidentified vehicle was not near any intersection nor any roadway
that might lead a cyclist to believe there was a possibility of a turn into his
line of travel. It was descending a steep hill but for unknown reasons came to
almost a complete stop at the centre of the road. In my view the facts at bar
are not at all similar to those cited in Janzen.

[37]        
Mr. Ormiston was puzzled by the actions of the unidentified driver
and he did give it a moment’s thought but determined to proceed to pass on the
right. He considered that a safe move as he had ample room and no indication the
move would be compromised. I am satisfied that he was not late and therefore
was not pressed for time.

[38]        
Counsel for the defendants pointed to various discrepancies between Mr. Ormiston’s
examination for discovery and his evidence at trial, suggesting that he was not
a reliable witness and thus his evidence in respect to speed, placement and
time should be viewed carefully.

[39]        
I found Mr. Ormiston to be a truthful witness who attempted to
recall events as accurately as possible. I agree that he was occasionally wrong
when answering questions but attribute that to his relative youth and to
injuries sustained in the collision. I do not accept that he was evasive or
attempting to recreate events that did not happen.

[40]        
Counsel for the defendants suggested that the driver had the right to do
whatever he wanted in his lane of travel and thus bore no responsibility for
the injuries. I am unable to accept that submission.

[41]        
I accept that this unidentified driver was almost stopped at the centre
line when he/she made a sudden veering motion that took the vehicle over the
fog line onto the shoulder. Such an action, at the very least, constitutes
driving without reasonable consideration for others. Clearly Mr. Ormiston
also bears some responsibility for this collision, given the provisions of the Motor
Vehicle Act to which I have referred. It remains to ascertain the extent to
which each is liable.

[42]        
In Salaam v. Abramovic, 2010 BCCA 212, the British Columbia Court
of Appeal offered the following comment about assessing statutory obligations
in respect to liability:

[18]      While the statutory provisions provide guidelines
for assessing fault in motor vehicle accident cases, they do not, alone,
provide a complete legal framework

[21]      …In the end, a court must determine whether, and
to what extent, each of the players in an accident met their common law duties
of care to other users of the road. In making that determination, a court
will be informed by the rules of the road, but those rules do not eliminate the
need to consider the reasonableness of the actions of the parties. This is
both because the rules of the road cannot comprehensively cover all possible
scenarios, and because users of the road are expected to exercise reasonable
care, even when others have failed to respect their right of way. While
s. 175 of the Motor Vehicle Act and other rules of the road are
important in determining whether the standard of care was met, they are not the
exclusive measures of that standard.

[Emphasis added.]

[43]        
In Shinkaruk v. Crouch, 2011 BCSC 1762, Saunders J. followed
these general statements of principle, noting:

[18]      A breach of the Motor Vehicle Act is not in
itself determinative of liability; all of the surrounding circumstances may be
taken into account.

[44]        
In my respectful view, given the provisions of the Negligence Act,
R.S.B.C. 1996, c. 333 and the facts that I have found, the defendants bear
the greater liability. I find them 70% responsible for the losses claimed. The
plaintiff will be assessed 30%.

[45]        
Judgment accordingly,

“The
Honourable Mr. Justice McKinnon”