Cyclist wrongly assumed van driver pulling out saw him and would yield
A cyclist riding on the sidewalk against traffic, in violation of the law, is partly liable for his collision with a vehicle because he should have exercised a heightened degree of caution, the B.C. Court of Appeal has ruled.
The dispute in Orr v. Graemond Holdings Ltd., 2022 BCCA 156, arose out of a collision between a vehicle entering the road from a driveaway and a bicycle being ridden on the sidewalk, against traffic. Jason Orr was riding his bicycle on the north sidewalk of Bowen Road in Nanaimo, B.C., against the flow of traffic. As Orr approached the driveway of a car dealership, Carol Christofferson was driving off the dealership lot. Christofferson claimed that he briefly stopped his van before entering the roadway, but the parties presented conflicting evidence during trial as to who had the right of way.
As Christofferson continued to advance his vehicle, he collided with Orr. The trial judge found that Christofferson should have stopped his vehicle before crossing the sidewalk and permitted Orr to pass in front of him. The judge concluded that Christofferson was at fault and Orr was not contributorily negligent and awarded damages for loss of past and future earning capacity to Orr.
Christofferson challenged the award, arguing that that the judge committed an error in finding that Orr was not at least partially at fault for the collision. He further contended that the judge failed to correctly consider that a cyclist riding on the sidewalk against traffic must exercise a heightened degree of caution because it was contrary to the Motor Vehicle Act for cyclists to ride on a sidewalk and against traffic, unless authorized by a bylaw or otherwise directed by a sign.
Instead, the judge found fault in the driver’s failure to look to the right, from where Orr was coming, before he started moving his vehicle. According to the judge, the “inescapable conclusion” was that the driver would not have been aware of users of the sidewalk, including cyclists, who might have approached from his right. The judge dismissed Christofferson’s argument that the cyclist was contributorily negligent because he was riding his bicycle on the sidewalk in contravention of the law.
However, the Court of Appeal ruled that Orr was contributorily negligent, finding fault in the trial judge’s analysis that the evident breach of a standard of care was not causally related to the accident, and that the negligence of the driver might justify the conclusion that the cyclist could not be blamed for the accident. According to the court, the judge should have focused on the question of whether the plaintiff failed to take reasonable care for his own safety and whether his failure to do so was one of the causes of the accident.
The court found that Christofferson was indeed negligent. However, the court said that even if he was negligent, it would not justify the conclusion that Orr could be blamed for the accident. The court clarified that Christofferson was required to yield the right of way to those on the sidewalk, and Orr should not have been riding his bicycle on the sidewalk against traffic in the first place.
Furthermore, the court found that Orr had failed to obtain any positive indication from Christofferson that he had seen the cyclist and that it was safe to for him to proceed. Orr had also failed to slow or stop to ensure that he was seen as he crossed in front of the Christofferson’s vehicle.
The court also said that even if Orr had been seen, he was not entitled to require the driver to give him the right of way while riding on the sidewalk against traffic.
“The duty to make way for those using the sidewalk and driveways in compliance with their statutory duties underlies the obligation to exercise a heightened degree of caution,” said the court.
The court concluded that Orr had been contributorily negligent for not stopping his bicycle or slowing to ensure Christofferson would yield to him before attempting to pass in front of his car in Bowen Road. In apportioning liability, the court considered the parties’ relative degrees of blameworthiness. The court gave weight to the fact that Christofferson knew exactly where Orr was and his concession during trial that he had misjudged what the cyclist was going to do. Since Orr’s relative blameworthiness was significantly less than the Christofferson’s, the court distributed 75 percent of the liability to Christofferson and 25 percent to Orr.
