This case has been circling around some of the insurance boards I frequent.

What do you think about this?

(this story is in Canada)

One of the small ways drivers can show kindness to each other is to create a gap in what is otherwise backed up traffic so that a driver trying to turn across the lane can get through. One of the great joys of being a cyclist is to take advantage of the shoulder to whiz past stopped traffic. Who is at fault when the turning driver and speedy cyclist collide? This question was before the BC Court of Appeal in Ilett v. Buckley, 2017 BCCA 257.

Mr. Ilett was a cyclist riding past vehicles stuck in traffic along the right shoulder of a road during the afternoon rush hour. Unbeknownst to him, at the next intersection, Ms. Buckley was in her vehicle waiting to turn left. With oncoming traffic backed up, the driver of a large truck created a gap and waived Ms. Buckley through. As her vehicle made its turn, Mr. Ilett entered the intersection and a collision resulted. Who is at fault?

The use of bikes is expanding in popularity in many cities, faster than many cities can install bike lanes. On some roads, the shoulder is commonly used by cyclists as if it were a bike lane. That was the case in Ilett v. Buckley; on the road where the collision occurred, it was common for cyclists to ride on the shoulder and pass vehicles in the lane. A sign had been installed acknowledging the shoulder's use by pedestrians and cyclists.

Ms. Buckely was aware that cyclists often used the shoulder and her evidence was that she could not see because of the large size of the truck which allowed her through. It was also Mr. Ilett's evidence that he could not see past the truck as he entered the intersection. Despite poor visibility, neither the driver nor the cyclist slowed to cross the intersection.

The trial judge found the driver entirely at fault on the grounds that it was common practice for cyclists to ride on the particular shoulder where the collision occurred and that she had failed to take reasonable precautions, in the circumstances.

But wait…..

On appeal, the Court of Appeal considered the provisions of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 ("Act") and noted that the Act places the same rights and duties on cyclists using the highways as it does on drivers. It prohibits cyclists from riding without due care and attention or without reasonable consideration for other persons using the highway. Specifically, s. 158(1) of the Act prohibits a driver, and in this case a cyclist, from overtaking and passing a vehicle on the right, except when there are two designated lanes. The shoulder is not a "designated lane" and Mr. Illett was therefore in breach of the Act when he passed vehicles stopped in the lane of traffic and entered the intersection.

Ms. Buckley was also in breach of the Act as she was required to yield the right of way to oncoming traffic when making a left turn. The Court of Appeal held that Mr. Ilett failed to exercise reasonable consideration for other persons using the highway when he entered the intersection "at speed" without stopping or slowing in the circumstances. The Court further held that, to meet his duty to exercise reasonable care, Mr. Ilett (the cyclist) had to meet the same standard as did Ms. Buckley as a driver; both were required to drive more slowly until visibility was such that they could see whether it was safe to proceed.

The Court of Appeal therefore reversed the Trial Judge's finding of liability and, since it was not possible to establish their different degrees of fault, the Court applied s. 1 of the Negligence Act, and apportioned liability equally.

This is an interesting precedent, particularly in the lower Mainland where drivers and cyclists share the road year round. Drivers and cyclists have many of the same rights and obligations when using the road, and both can be held responsible for breaches of those obligations.