In British Columbia the rules regarding road usage are laid out in the Motor Vehicle Act.  The Act has a broad variety of provisions and has a number of provisions that relate to cyclists.  The provisions of the Motor Vehicle Act in turn are often used by our Courts to determine who is at fault in a motor vehicle accident.  As a cyclist you likely know the dangers on the road and you understand how to safely share the road with motorists.  Regardless of how safely you are using the road though, there is always the dangerous possibility that your use of the road and a car’s use of the road will not align and a collision will result.  Unfortunately as a cyclist that will often mean that you will suffer significant injury.   The  provisions of the Motor Vehicle Act and the way that they apply to cyclists often lead  judges to make findings of fault that would likely be very surprising to most cyclists and that do not accord with the reality of  the way that cyclists use the road.  Under the provisions of the Motor Vehicle Act cyclists have the same rights and duties as drivers of vehicles and must not operate a cycle without due care and attention or without reasonable consideration for other persons using the highway.  The Motor Vehicle Act requires cyclists to travel as far right in the lane as possible.  The Motor Vehicle Act also prohibits passing on the right except in very defined circumstances.  The section of the Act dealing with passing on the right provides as follows:

158(1)  The driver of a vehicle must not cause or permit the vehicle to overtake or pass on the right of another vehicle except

(a)  when the vehicle overtaken is making a left turn or its driver has signaled his or her intention to make a left turn,

(b)  when on a laned roadway there is one or more than one unobstructed lane on the side of the roadway on which the driver is permitted to drive, or

(c)  on a one way street or a highway on which traffic is restricted to one direction of movement, where the roadway is free from obstructions and is of sufficient width for 2 or more lanes of moving vehicles.

A frequently seen result in our Courts is that judge’s will use the provisions of the Motor Vehicle Act as a guide to determine whether a cyclist has been negligent when a collision with a car has occurred.  The most frequent section that ends up being argued as an indication of negligence on the part of the cyclist is that they are passing vehicles on the right.  As a cyclist I know that this happens all the time and is really the only logical way a cyclist can travel.  When vehicle traffic is backed up and moving slowly a cyclist is not going to slow their travel to the point that the are not passing vehicles on the right.  But in not doing so, the argument is made that the cyclist is operating in contravention to the  Motor Vehicle Act and is therefore negligent.  An argument can be made that the cyclist is travelling in an unobstructed lane on the side of the roadway and therefore that the prohibition against passing on the right does not apply, but that argument may or may not be accepted.

Reasons for judgment of the British Columbia Court of Appeal were released earlier this week in the case of Ilett v. Buckley which clearly demonstrates how the courts analyze cyclists negligence in these circumstances.  The cyclist was injured when he was struck by a left turning driver that “shot the gap” between vehicles that were stopped due to a back up in traffic.  The cyclist was riding along the shoulder to the right of the backed up vehicles.  The road was one that was frequently used by cyclists, but was not a designated cycling route.  The motorist was familiar with the area and knew that there were cyclists that would travel along the shoulder.  At trial the judge found that the cyclist was in breach of the Motor Vehicle Act because he passed the lane of traffic on his left while he rode on the shoulder, but he exonerated the cyclist from any finding of contribution to the accident, concluding as follows:

[163]  Mr. Illett did not fail to take reasonable care for his own safety.  Cyclists frequently rode on the shoulder at the Intersection and many were doing so that day.  Mr. Ilett was visible to Ms. Mattina for a significant distance prior to the intersection.  There were no signals requiring northbound traffic on Admirals to stop.  Although Mr. Ilett passed the slowly moving and stopped lane of traffic which was on his left while he rode on the shoulder, it was commonplace for cyclists to do so.

The trial judge found the left turning motorist 100% at fault for the accident.  The motorist appealed that decision and the Court of Appeal came to a very different conclusion than the trial judge.  In analyzing the trial judge’s reasons, the Court of Appeal said as follows:

[25]  The judge did not say why she discounted compliance with s. 158 as being in any way a part of the standard of care Mr. Ilett had to meet to discharge his duty to ride with due care and attention.  She appears to have attached importance to the fact that other cyclists regularly rode on the shoulders (evidently passing vehicles on the right) and were doing so that day, but there is no evidence that any northbound cyclists on Admirals entered the Seenupin intersection, or any other intersection, in breach of s. 158, without endeavouring to determine if it was safe to do so.  When passing on the right, Mr. Ilett was acting contrary to the “rules of the road” in a way that became critical when he approached the intersection.  Had he not passed the large vehicle on its right at speed – as under the Act he was not permitted to do – the accident would not have happened.

[26]  Beyond that, however, the judge made no finding of anything Mr. Ilett did when he approached the intersection to discharge the duty of care he owed.  Notwithstanding the circumstances that cried out for the exercise of some measure of caution, Mr. Ilett rode on without slowing into the intersection, exercising no caution whatsoever.  Nonetheless, the judge identified no failure on Mr. Ilett’s part for which he was to be faulted in the discharge of the duty he owed.  She did not say why he was required to do nothing more than ride into the intersection as he did.  She effectively found he had no duty to exercise the care the circumstances required.

The Court of Appeal determined that fault for the accident should be attributed 50/50 as between the cyclist and the left turning vehicle, stating as follows with respect to what the cyclist should have done:

[29]  This principle is applicable here.  As stated, Mr. Ilett had a legal duty to exercise due care and attention while riding his bicycle and to have reasonable consideration for other persons using the highway.  As quoted, the judge concluded that Mr. Ilett “did not fail to take reasonable care for his own safety”.  However, in light of the factual basis on which her reasoning is based, this amounts to an error of law.  It cannot be the case that a cyclist who proceeds at speed into an intersection in the circumstances with which Mr. Ilett was faced, without stopping or slowing down, can be said to have discharged his duty to ride with due care and attention and with reasonable consideration for others using the highway.  Mr. Ilett took no steps at all to fulfill the duty he bore as embodied in the Act and, more importantly, the more general duty in negligence law to take reasonable care for his own safety and the safety of others.  the judge’s conclusion that Mr. Ilett had not failed to take reasonable care for his own safety constituted an error of law because it amounted to a finding that there was no duty resting upon him to take what would have been reasonable care in the circumstances.

[30]  What would have constituted reasonable care on his part – the standard of care he had to meet – can, in the circumstances, have only been the same standard to which the judge effectively held Ms. Buckley.  She 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.  She was required to drive more slowly until she could see byond the large vehicle and ascertain what she needed to know.  Mr. Ilett 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 Ms. Buckley’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.

In my view, the decision of the Court of Appeal was driven directly by the contravention of the Motor Vehicle Act with the cyclist ignoring the prohibition of passing on the right.  That is the only way that the decision to attribute 50% of fault to the cyclist can be justified.  The cyclist had the right of way.  The cyclist was proceeding straight through an uncontrolled intersection.  The cyclist is entitled to assume that other users of the road will obey the rules of the road, including the rule that you do not turn left unless it is safe to do so and the movement can be made without impeding the flow of travel of another vehicle.  The motorist was the servient driver and turned left in contravention to the provisions of the Motor Vehicle Act.

This decision underscores to me the necessity of revisions to the provisions of the Motor Vehicle Act and specifically a revision to the prohibition of passing on the right when you are a cyclist.  It is in impractical rule for cyclists and does not accord with the reality of bicycle travel.  The rule results in relieving motorists of responsibility for collisions with cyclists where clearly the fault for the accident lies in the actions of the motorist.  Unfortunately, until we have a revision to the provisions of the Act judge’s hands will be bound and they will be forced to find actions like that of this cyclist as negligent.