Cyclist Riding Through Crosswalk 15% at Fault For Accident

Cyclist Riding Through Crosswalk 15% at Fault For Accident

In DOBRE V. LANGLEY, 2011 BCSC 1315 (“DOBRE”), a decision released October 4, 2011, the Court considered how to apportion liability in a personal injury case where the Plaintiff was struck by the Defendant while riding his bike in a cross-walk. The DOBRE decision provides an example of how compliance with the “rules of the road” can directly affect who is liable for a particular accident, and to what extent.

The Court in DOBRE noted that by riding his bike through the cross-walk, as opposed to dismounting and walking across, the Plaintiff lost the statutory right-of-way provided to pedestrians by s. 119 of the MOTOR VEHICLE ACT, R.S.B.C. 1996, c. 318.

However, just because the Plaintiff did not have the right-of-way by virtue of being in the cross-walk, this did not negate the general duty of care the Defendant owed to him in the particular circumstances of the case (at paragraphs 32; 34-35):

[32]         SECTION 183 OF THE MOTOR VEHICLE ACT SETS OUT THE DUTIES OF A CYCLIST, WHO, IN ADDITION TO THE SPECIFIC DUTIES SET OUT IN S. 183, ALSO SHARES THE SAME RIGHTS AND DUTIES WITH DRIVERS OF A MOTOR VEHICLE: SEE ALSO FRIEDRICH V SHEA, 2008 BCSC 1243, 49 M.P.L.R. (4TH) 63 AT PARA 29.

[34]         IT IS S. 183(2)(B) OF THE MOTOR VEHICLE ACT THAT OBLIGATES BICYCLISTS INTENDING TO CROSS A HIGHWAY AT A CROSSWALK TO DISMOUNT AND WALK THEIR BIKE ACROSS IT. MR. DOBRE’S FAILURE TO DISMOUNT AND CROSS THE INTERSECTION ON FOOT MEANS HE DOES NOT MEET THE DEFINITION OF A “PEDESTRIAN” SET OUT IN S. 119 OF THE MOTOR VEHICLE ACT. HE THUS LOSES THE STATUTORY RIGHT-OF-WAY THAT HIS CROSSING ON FOOT WOULD HAVE GIVEN HIM. AS BRIEFLY TOUCHED ON EARLIER, THE DEFENDANT STILL OWED MR. DOBRE A GENERAL LEGAL DUTY OF CARE THAT MR. DOBRE, THROUGH PROVING HE WAS A RECOGNIZABLE HAZARD AND THAT HIS ACTIONS HAD LEFT THE DEFENDANT WITH ENOUGH TIME AND DISTANCE TO SEE AND AVOID STRIKING HIM, HAS SHOWN SHE FAILED TO DISCHARGE BY HER FAILING TO KEEP AN ADEQUATE LOOKOUT: KERR V. CREIGHTON, 2007 BCSC 208, 155 A.C.W.S. (3D) 481 AT PARAS. 45, 56 AND WALKER V. BROWNLEE AND HARMON, [1952] 2 D.L.R. 450, [1952] S.C.J. NO. 56 (S.C.C.). AS NOTED, I HAVE FOUND MR. DOBRE DISCHARGED THAT BURDEN.

[35]          THE PRINCIPLE OF NEGLIGENCE LAW THAT THE GREATER THE RISK, THE GREATER THE NEED FOR CARE, IS A TRITE BUT IMPORTANT ONE. BOTH PARTIES, EACH POINTING TO TWO DIFFERENT CASES, RELY ON IT.

Because the Plaintiff rode his bike through the cross-walk rather than dismounting and walking it across, the Court had to engage in an analysis based on a “general legal duty of care” owed by the Defendant to the Plaintiff rather than rely upon presumptions as to who had the statutory right of way.

Interestingly, while attempting to come to a conclusion as to whether the Defendant could have avoided the accident if she had exercised reasonable care, the Court considered a computer animation made using the program PC CRASH which simulated the accident.

Although the admissibility of this computer animation was contested on a VOIR DIRE, the Court determined that it was reliable enough to be admissible evidence (at paragraphs 18-19):

[18]           USING PC CRASH, A COMPUTER PROGRAM, MR. REMPEL PREPARED AN ANIMATION SHOWING THE DEFENDANT’S VIEW AS SHE APPROACHED THE INTERSECTION. THE ANIMATION ASSUMES THE DEFENDANT’S THEORY THAT MR. DOBRE RODE RIGHT ONTO THE CROSSWALK WITHOUT STOPPING. MR. DOBRE PRESENTED THE ANIMATION TO SHOW THE DEFENDANT’S SIGHTLINES AS SHE APPROACHED THE CROSSWALK, AS WELL AS THE SPEEDS, TIME AND DISTANCES OF BOTH PARTIES AS THEY EACH MOVED TOWARD THE POINT OF IMPACT. THE SPEEDS, TIMES AND DISTANCES MR. REMPEL USED WERE TAKEN FROM MR. ISING’S REPORT. MR. REMPEL VISITED THE ACCIDENT SCENE TO MAKE SURE THE DEFENDANT’S SIGHTLINES MATCHED WHAT THE ANIMATION SHOWED. HE DID NOT INCORPORATE INTO THE ANIMATION A LINE OF EVERGREENS RUNNING ALONG THE WEST SIDE OF SOUTHMERE. BECAUSE THE VERY LATE AFTERNOON SUN THAT DAY COULD HAVE BEEN SHINING BEHIND THE EVERGREENS, THEIR BACKLIT SHADOWS ARGUABLY MADE MR. DOBRE LESS VISIBLE TO WESTBOUND TRAFFIC. THE DEFENDANT SUGGESTED THE ANIMATION DID NOT, THEREFORE, GIVE A FAIR REPRESENTATION OF THE DEFENDANT’S VIEW.

[19]           A VOIR DIRE ON ITS ADMISSIBILITY GAVE THE DEFENDANT OPPORTUNITY TO CROSS-EXAMINE MR. REMPEL ON WHETHER THE ANIMATION TRULY REPRESENTED THE SCENE AND THE PLAYER’S MOVEMENTS OF THE PARTIES. I DECIDED MR. REMPEL HAD INCORPORATED THE ESSENTIAL ELEMENTS OF THE DEFENDANT’S THEORY AND ADEQUATELY REPRESENTED THE DEFENDANT’S BASIC SIGHTLINES. AS FOR THE LINE OF MISSING EVERGREENS, A PHOTOGRAPH SHOWING THEM AT ROUGHLY THE SAME EQUINOX AND TIME OF DAY WAS IN EVIDENCE; AND I FIND THEIR ABSENCE FROM THE SCENE DOES NOT DETRACT FROM THE REPRESENTATIVE ACCURACY OF THE TIME AND DISTANCE ANIMATION TO WARRANT EXCLUDING IT. I FOUND THE ANIMATION TO BE AN INSTRUCTIVE DEMONSTRATION OF THE DEFENCE THEORY AND OF THE TIMES AND DIMINISHING DISTANCES SEPARATING THE PARTIES AS THEY MOVED TO IMPACT.

The Court in DOBRE ultimately concluded that the Plaintiff’s failure to dismount his bike imposed a “heightened duty of care” on him, but found that the Plaintiff did in fact take a number of steps to ensure his own safety.

In addition, the Defendant failed to exercise the necessary caution when approaching a well-marked cross-walk, leading to a finding that the Defendant was 85% at fault and the Plaintiff was 15% at fault (at paragraphs 46-49):

 [46]         GIVEN THE FACT THAT BEFORE IMPACT MS. LANG NEVER SAW MR. DOBRE RIDING ACROSS THE INTERSECTION, IT IS UNLIKELY SHE WOULD HAVE SEEN HIM HAD HE CHOSEN TO WALK ACROSS THE INTERSECTION INSTEAD. BUT BECAUSE MR. DOBRE’S FAILURE TO DISMOUNT IMPOSED ON HIM A HEIGHTENED DUTY TO TAKE CARE FOR HIS OWN PERSONAL SAFETY, AS WELL AS TO MAKE HIS PRESENCE KNOWN TO ONCOMING DRIVERS, HIS FAILURE TO DISMOUNT AND WALK REMAINS A RELEVANT FACTOR FOR DETERMINING ANY APPORTIONMENT OF LIABILITY BETWEEN THE PARTIES.

[47]         BY ANY FAIR MEASURE, MR. DOBRE DID EXERCISE A CONSIDERABLE DEGREE OF CARE. HE STOPPED AT THE CURB, STRADDLING THE BIKE. HE LOOKED WEST AND EAST. HE SAW THE DEFENDANT WELL TO THE EAST. HE MISTAKENLY REASONED SHE WAS FAR ENOUGH AWAY TO GIVE HIM NO REASON FOR CONCERN, ESPECIALLY, HE THOUGHT, WITH THE WARNING THE FLASHING LIGHTS WOULD GIVE. HE MOUNTED THE SEAT. HE PEDALLED ACROSS THE INTERSECTION SLOWLY. WHEN HE SAW THE DEFENDANT AT THE LAST MOMENT, HE PEDALLED A FEW HARD STROKES, ALMOST SUCCEEDING IN REMOVING HIMSELF FROM HARM’S WAY. APART FROM HIS ONE GLANCE IN EITHER DIRECTION BEFORE PUSHING THE BUTTON, HOWEVER, HE PAID NO FURTHER REGARD TO MS. LANG’S APPROACH.

[48]          IN THE CASE AT BAR, MR. DOBRE, FOR THE REASONS STATED, OWED A HEIGHTENED DUTY OF CARE. THE DEFENDANT, FOR HER PART, WAS APPROACHING A WELL-MARKED CROSSWALK AND, IN THE CIRCUMSTANCES, SHOULD HAVE BEEN EXTRA VIGILANT IN MAINTAINING A LOOKOUT FOR THOSE WHO MIGHT BE APPROACHING OR IN THE CROSSWALK.

 

[49]         

CONSIDERING ALL THE CIRCUMSTANCES, I FIND THE APPORTIONMENT THAT FAIRLY REFLECTS THE PARTIES’ RELATIVE BLAMEWORTHINESS IS AN 85/15 SPLIT IN LIABILITY, FAVOURING MR. DOBRE. MR. DOBRE WILL THUS RECOVER 85% OF HIS DAMAGES, TO WHICH I NOW TURN…

 

In DOBRE V. LANGLEY, 2011 BCSC 1315 (“DOBRE”), a decision released October 4, 2011, the Court considered how to apportion liability in a personal injury case where the Plaintiff was struck by the Defendant while riding his bike in a cross-walk. The DOBRE decision provides an example of how compliance with the “rules of the road” can directly affect who is liable for a particular accident, and to what extent.

The Court in DOBRE noted that by riding his bike through the cross-walk, as opposed to dismounting and walking across, the Plaintiff lost the statutory right-of-way provided to pedestrians by s. 119 of the MOTOR VEHICLE ACT, R.S.B.C. 1996, c. 318.

However, just because the Plaintiff did not have the right-of-way by virtue of being in the cross-walk, this did not negate the general duty of care the Defendant owed to him in the particular circumstances of the case (at paragraphs 32; 34-35):

[32]         SECTION 183 OF THE MOTOR VEHICLE ACT SETS OUT THE DUTIES OF A CYCLIST, WHO, IN ADDITION TO THE SPECIFIC DUTIES SET OUT IN S. 183, ALSO SHARES THE SAME RIGHTS AND DUTIES WITH DRIVERS OF A MOTOR VEHICLE: SEE ALSO FRIEDRICH V SHEA, 2008 BCSC 1243, 49 M.P.L.R. (4TH) 63 AT PARA 29.

[34]         IT IS S. 183(2)(B) OF THE MOTOR VEHICLE ACT THAT OBLIGATES BICYCLISTS INTENDING TO CROSS A HIGHWAY AT A CROSSWALK TO DISMOUNT AND WALK THEIR BIKE ACROSS IT. MR. DOBRE’S FAILURE TO DISMOUNT AND CROSS THE INTERSECTION ON FOOT MEANS HE DOES NOT MEET THE DEFINITION OF A “PEDESTRIAN” SET OUT IN S. 119 OF THE MOTOR VEHICLE ACT. HE THUS LOSES THE STATUTORY RIGHT-OF-WAY THAT HIS CROSSING ON FOOT WOULD HAVE GIVEN HIM. AS BRIEFLY TOUCHED ON EARLIER, THE DEFENDANT STILL OWED MR. DOBRE A GENERAL LEGAL DUTY OF CARE THAT MR. DOBRE, THROUGH PROVING HE WAS A RECOGNIZABLE HAZARD AND THAT HIS ACTIONS HAD LEFT THE DEFENDANT WITH ENOUGH TIME AND DISTANCE TO SEE AND AVOID STRIKING HIM, HAS SHOWN SHE FAILED TO DISCHARGE BY HER FAILING TO KEEP AN ADEQUATE LOOKOUT: KERR V. CREIGHTON, 2007 BCSC 208, 155 A.C.W.S. (3D) 481 AT PARAS. 45, 56 AND WALKER V. BROWNLEE AND HARMON, [1952] 2 D.L.R. 450, [1952] S.C.J. NO. 56 (S.C.C.). AS NOTED, I HAVE FOUND MR. DOBRE DISCHARGED THAT BURDEN.

[35]          THE PRINCIPLE OF NEGLIGENCE LAW THAT THE GREATER THE RISK, THE GREATER THE NEED FOR CARE, IS A TRITE BUT IMPORTANT ONE. BOTH PARTIES, EACH POINTING TO TWO DIFFERENT CASES, RELY ON IT.

Because the Plaintiff rode his bike through the cross-walk rather than dismounting and walking it across, the Court had to engage in an analysis based on a “general legal duty of care” owed by the Defendant to the Plaintiff rather than rely upon presumptions as to who had the statutory right of way.

Interestingly, while attempting to come to a conclusion as to whether the Defendant could have avoided the accident if she had exercised reasonable care, the Court considered a computer animation made using the program PC CRASH which simulated the accident.

Although the admissibility of this computer animation was contested on a VOIR DIRE, the Court determined that it was reliable enough to be admissible evidence (at paragraphs 18-19):

[18]           USING PC CRASH, A COMPUTER PROGRAM, MR. REMPEL PREPARED AN ANIMATION SHOWING THE DEFENDANT’S VIEW AS SHE APPROACHED THE INTERSECTION. THE ANIMATION ASSUMES THE DEFENDANT’S THEORY THAT MR. DOBRE RODE RIGHT ONTO THE CROSSWALK WITHOUT STOPPING. MR. DOBRE PRESENTED THE ANIMATION TO SHOW THE DEFENDANT’S SIGHTLINES AS SHE APPROACHED THE CROSSWALK, AS WELL AS THE SPEEDS, TIME AND DISTANCES OF BOTH PARTIES AS THEY EACH MOVED TOWARD THE POINT OF IMPACT. THE SPEEDS, TIMES AND DISTANCES MR. REMPEL USED WERE TAKEN FROM MR. ISING’S REPORT. MR. REMPEL VISITED THE ACCIDENT SCENE TO MAKE SURE THE DEFENDANT’S SIGHTLINES MATCHED WHAT THE ANIMATION SHOWED. HE DID NOT INCORPORATE INTO THE ANIMATION A LINE OF EVERGREENS RUNNING ALONG THE WEST SIDE OF SOUTHMERE. BECAUSE THE VERY LATE AFTERNOON SUN THAT DAY COULD HAVE BEEN SHINING BEHIND THE EVERGREENS, THEIR BACKLIT SHADOWS ARGUABLY MADE MR. DOBRE LESS VISIBLE TO WESTBOUND TRAFFIC. THE DEFENDANT SUGGESTED THE ANIMATION DID NOT, THEREFORE, GIVE A FAIR REPRESENTATION OF THE DEFENDANT’S VIEW.

[19]           A VOIR DIRE ON ITS ADMISSIBILITY GAVE THE DEFENDANT OPPORTUNITY TO CROSS-EXAMINE MR. REMPEL ON WHETHER THE ANIMATION TRULY REPRESENTED THE SCENE AND THE PLAYER’S MOVEMENTS OF THE PARTIES. I DECIDED MR. REMPEL HAD INCORPORATED THE ESSENTIAL ELEMENTS OF THE DEFENDANT’S THEORY AND ADEQUATELY REPRESENTED THE DEFENDANT’S BASIC SIGHTLINES. AS FOR THE LINE OF MISSING EVERGREENS, A PHOTOGRAPH SHOWING THEM AT ROUGHLY THE SAME EQUINOX AND TIME OF DAY WAS IN EVIDENCE; AND I FIND THEIR ABSENCE FROM THE SCENE DOES NOT DETRACT FROM THE REPRESENTATIVE ACCURACY OF THE TIME AND DISTANCE ANIMATION TO WARRANT EXCLUDING IT. I FOUND THE ANIMATION TO BE AN INSTRUCTIVE DEMONSTRATION OF THE DEFENCE THEORY AND OF THE TIMES AND DIMINISHING DISTANCES SEPARATING THE PARTIES AS THEY MOVED TO IMPACT.

The Court in DOBRE ultimately concluded that the Plaintiff’s failure to dismount his bike imposed a “heightened duty of care” on him, but found that the Plaintiff did in fact take a number of steps to ensure his own safety.

In addition, the Defendant failed to exercise the necessary caution when approaching a well-marked cross-walk, leading to a finding that the Defendant was 85% at fault and the Plaintiff was 15% at fault (at paragraphs 46-49):

 [46]         GIVEN THE FACT THAT BEFORE IMPACT MS. LANG NEVER SAW MR. DOBRE RIDING ACROSS THE INTERSECTION, IT IS UNLIKELY SHE WOULD HAVE SEEN HIM HAD HE CHOSEN TO WALK ACROSS THE INTERSECTION INSTEAD. BUT BECAUSE MR. DOBRE’S FAILURE TO DISMOUNT IMPOSED ON HIM A HEIGHTENED DUTY TO TAKE CARE FOR HIS OWN PERSONAL SAFETY, AS WELL AS TO MAKE HIS PRESENCE KNOWN TO ONCOMING DRIVERS, HIS FAILURE TO DISMOUNT AND WALK REMAINS A RELEVANT FACTOR FOR DETERMINING ANY APPORTIONMENT OF LIABILITY BETWEEN THE PARTIES.

[47]         BY ANY FAIR MEASURE, MR. DOBRE DID EXERCISE A CONSIDERABLE DEGREE OF CARE. HE STOPPED AT THE CURB, STRADDLING THE BIKE. HE LOOKED WEST AND EAST. HE SAW THE DEFENDANT WELL TO THE EAST. HE MISTAKENLY REASONED SHE WAS FAR ENOUGH AWAY TO GIVE HIM NO REASON FOR CONCERN, ESPECIALLY, HE THOUGHT, WITH THE WARNING THE FLASHING LIGHTS WOULD GIVE. HE MOUNTED THE SEAT. HE PEDALLED ACROSS THE INTERSECTION SLOWLY. WHEN HE SAW THE DEFENDANT AT THE LAST MOMENT, HE PEDALLED A FEW HARD STROKES, ALMOST SUCCEEDING IN REMOVING HIMSELF FROM HARM’S WAY. APART FROM HIS ONE GLANCE IN EITHER DIRECTION BEFORE PUSHING THE BUTTON, HOWEVER, HE PAID NO FURTHER REGARD TO MS. LANG’S APPROACH.

[48]          IN THE CASE AT BAR, MR. DOBRE, FOR THE REASONS STATED, OWED A HEIGHTENED DUTY OF CARE. THE DEFENDANT, FOR HER PART, WAS APPROACHING A WELL-MARKED CROSSWALK AND, IN THE CIRCUMSTANCES, SHOULD HAVE BEEN EXTRA VIGILANT IN MAINTAINING A LOOKOUT FOR THOSE WHO MIGHT BE APPROACHING OR IN THE CROSSWALK.

[49]         CONSIDERING ALL THE CIRCUMSTANCES, I FIND THE APPORTIONMENT THAT FAIRLY REFLECTS THE PARTIES’ RELATIVE BLAMEWORTHINESS IS AN 85/15 SPLIT IN LIABILITY, FAVOURING MR. DOBRE. MR. DOBRE WILL THUS RECOVER 85% OF HIS DAMAGES, TO WHICH I NOW TURN…

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