Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing a personal injury claim involving a cyclist struck by a vehicle.

In today’s case (Dhanoya v. Stephens) the Plaintiff cyclist rode into a marked crosswalk without stopping and was struck by a vehicle.  The Court found the cyclist was fully at fault for the collision and had the cyclist kept a proper lookout the collision could have been avoided.  In finding the cyclist solely liable Madam Justice Dillon provided the following reasons:

[13]         After consideration of all of the evidence and particularly after considering the evidence of the plaintiff in the context of all of the evidence and the surrounding circumstances, the evidence of the defendants and Woermke is accepted as to how the accident occurred. It is accepted that Jodie Stephens first saw the plaintiff as the plaintiff approached the intersection on his bike. Although Mr. Stephens was inconsistent as to his exact position when he first saw the plaintiff, it was from 15 to 30 feet from the crosswalk, close enough for the driver to have little option in the circumstances. He was travelling at about 35 kph initially and this estimate of his original speed was supported by Woermke. It was apparent to Mr. Stephens that the plaintiff was not going to stop. Mr. Stephens applied his brakes, managing to slow down to five to ten kph before impact. As described by Woermke, the plaintiff rolled into the crosswalk without stopping or looking. The plaintiff admitted that he bicycled across the crosswalk. He said that he stopped at the crosswalk, put his foot down, and looked for cars for a minute. He did not see the defendants’ vehicle approaching: if he had, he stated that he would not have entered the crosswalk. Clearly, the vehicle was there to be seen. Mr. Stephens realized that the plaintiff had not seen the Stephens vehicle and had not made eye contact so to judge his own safety. The plaintiff was on his usual route, on a bright day, getting close to his destination, with a perception that there were few cars on the road. In the scenario of little perceived traffic, it is concluded that it was the plaintiff’s usual practice to bike across the crosswalk. He followed that practice on the day of the accident. He did not stop and look both ways, else he would have seen the approaching vehicle which was 30 feet away from the crosswalk at most.

[14]         The driver of a motor vehicle has a general duty of care to keep adequate lookout for recognizable hazards on the road (Dobre v. Langley, 2011 BCSC 1315 at para. 34). A driver approaching a marked crosswalk assumes a heightened duty to take extreme care and maintain a vigilant lookout for those that might be in the crosswalk (Dobre at paras. 35 and 43). It is important to remember that the standard of care is not one of perfection, but whether the driver acted in a manner which an ordinarily prudent person would act (Hadden v. Lynch, 2008 BCSC 295 at para. 69).

[15]         A cyclist shares the same rights and duties with drivers of a motor vehicle (Dobre at para. 32). The duties specific to a cyclist are set out in s. 183 Motor Vehicle Act, R.S.B.C. 1996, c. 318. The plaintiff was riding his bicycle in a crosswalk in contravention of s.183 (2)(b) Motor Vehicle Act. He had a duty to keep a proper lookout (Dobre at para. 35).

[16]         Because of this violation of the traffic law, the plaintiff assumed a heightened duty to ensure his own safety, particularly to ensure that he was seen by other drivers (Hadden at para. 59; Dobre at para. 39; Callahan v. Kim, 2012 BCSC 1615 at para. 23). As acknowledged by the plaintiff, he did not have the statutory right of way when he bicycled across the crosswalk because he was not a pedestrian (Dobre at para. 34). Nonetheless, a reasonably careful and skillful driver has a duty to give way to a user of a crosswalk where there is an expectation that pedestrians and other users will be present (Callahan at para. 18). However, in the circumstance of the plaintiff’s failure to yield the right of way, he must establish that, after the defendant became aware that the plaintiff was proceeding onto the crosswalk, the defendant had sufficient opportunity to avoid the accident of which a reasonably careful and skilled driver would have availed himself (Hadden, at paras. 67-68). The plaintiff must establish that he was a recognizable hazard and that his actions left the defendant with enough time and distance to see and avoid striking him (Dobre at para. 34).

[17]         The plaintiff alleges that Mr. Stephens was not operating his vehicle at a reasonable speed in the circumstances, notwithstanding that he was travelling at below the speed limit. The plaintiff also says that Mr. Stephens was distracted by the conversation in the car, so failing to take due care and attention. The plaintiff maintained that the defendant breached the standard of care when he failed to yield the right of way to the user of the crosswalk and that this failure was the cause of the accident.

[18]         Mr. Stephens saw the plaintiff as he cycled towards the crosswalk and anticipated that the plaintiff was going to cycle right into the crosswalk. Although he admitted that he was in conversation with others in the vehicle, the evidence does not establish that he was so distracted so as not to notice the plaintiff as he was at the intersection and as he entered the crosswalk. The defendant was not speeding. He immediately slowed, braking to avoid a collision. He also tried to make eye contact with the cyclist. The defendant did not have sufficient opportunity to avoid the accident. A reasonably careful and skilful driver could not have avoided this accident.

[19]         The plaintiff did not exercise a reasonable degree of care when he cycled into the crosswalk without looking for vehicles. He did not exercise the expected degree of care for his own safety. He assumed that there was no traffic and cycled into the crosswalk without looking. Had he looked, he would have seen the defendant’s vehicle. Had he looked, the plaintiff would have made eye contact with Mr. Stephens who was alert to make contact. Had he looked, the plaintiff would not have proceeded into the crosswalk. Had he looked, this accident could have been avoided. The plaintiff is the author of his own misfortune.

[20]         The plaintiff is 100% at fault for the accident of November 21, 2015.

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