Bicycles have a lot of things going for them over recent years. As more people are becoming more aware of the cost of their impact on the environment through what they consume and how they commute, some have begun to substitute their less environmentally friendly modes of transport for bicycles.
The City of Vancouver and other neighbouring municipalities as part of a ‘green’ campaign are actively promoting the use of bicycles over motor vehicles by dedicating more bike lanes and bicycle parking on the streets of the city and supporting the use of bike sharing programs. More information can be found on Vancouver’s bicycle policies and infrastructure here.
However, like all modes of transport, cycling comes with its own set of risks. Bicycles can travel at relatively high rates of speed and are allowed on streets and highways yet they offer virtually no protection to their riders.
The contrast to cars, that have robust safety features such as metal cages that absorb the shock of a collision, seatbelts, and airbags to restrain occupants, and sophisticated braking and other safety systems to avoid or minimize the severity of a collision, is stark. A bike rider’s only potential protection from the significant mechanical forces unleashed in an accident may be a helmet (if the rider is wearing one) and the rider’s own ‘road smarts’.
Accidents, therefore, have the potential to cause severe or even catastrophic or fatal injuries to bicycle riders resulting from brain damage, broken bones, and damage to internal organs.
What Laws Apply to Bicycles and their Riders in British Columbia?
Bicyclists who ride their “cycles” on a street or highway have the “the same rights and duties as a driver of a vehicle”: B.C. Motor Vehicle Act at section 183. That Act sets out numerous ‘rules of the road’ that anyone who drives a car in B.C. must know; in fact, to obtain a driver’s license, you must pass both a written test of those rules and a driving test. Notably, bicyclists are not required to obtain an operator’s license before riding a bicycle (yet most bicyclists other than children will have driver’s licenses because they also drive cars).
The Motor Vehicle Act also establishes special rules of the road that only apply to bicyclists, for example how to perform and signal left and rights turns and stops, and what safety equipment must be mounted on the bicycle, for example if it is operated after dark it must be equipped with a forward facing light, a rear facing red light and reflectors.
Bicyclists who breach the laws mandated by the Motor Vehicle Act are liable to be fined for the infraction, just like a motorist who is caught speeding, or making an unsafe lane change or ‘blowing’ a red light at an intersection, or a pedestrian who ‘jaywalks’ across a street intersection against a red light or ‘don’t walk’ signal.
However, if an accident occurs, a breach of the one or more of the Motor Vehicle Act laws may also be evidence of negligence and used to determine who was at fault for the accident.
What is Negligence?
Negligence is a legal principle developed by the common law of ‘torts’. To be found liable in negligence, three basic tests have to be satisfied. First, a ‘duty of care’ must be found to be owed by one person to another. Second, that duty of care is breached by an act or omission by one of those persons. Third, the other person has suffered harm as a result of that act or omission.
Satisfying the first and third of those tests is typically not a problem in a bicycle accident case. Bicyclists, motorists, and pedestrians who use streets and sidewalks all typically owe duties of care to each other. Also, where someone has sustained a physical injury as a result of a bicycle accident, there is no question that someone has suffered harm.
Satisfying the second test of whether a duty of care has been breached is a more complex question. The common law requires proof that the person who caused the harm failed to take ‘reasonable care’ in the circumstances.
As noted, an important reference point is the rules of the road from the Motor Vehicle Act, a breach of which may be evidence that someone failed to take reasonable care in all the circumstances. The courts will also consider a host of other factors to determine whether reasonable care was taken including weather and visibility conditions, the mechanical condition of any vehicle or bicycle involved, and the mental or physical condition of the persons involved.
Fault in bicycle accidents does not have to be exclusive to one person or the other. It is possible that more than one person is found not to have taken reasonable care in the circumstances so the liability is said to be ‘divided’.
Therefore in a car/bicycle accident, the driver of a car that turned left and struck an oncoming cyclist in the curb lane might be held partly at fault but the cyclist, if he was riding at night without a light or reflectors and wearing dark clothing, might also be held partly at fault for his own injuries. In that example, if the car driver was held 80% at fault and the cyclist 20%, the cyclist would only recover 80% of his damages from the car driver.
Bicycle accidents like other types of motor vehicle accidents often also involve more than two parties because roadways are busy places. Consequently, it is possible that two or more other persons may be at fault for the injuries sustained by a cyclist in an accident.
Can Children be Negligent?
Many children ride bicycles both as a means of transportation and for recreation. Unfortunately, due to their potential lack of maturity and experience with the risks posed by riding a bicycle, children are frequently involved in accidents.
The courts recognize that when assessing whether a child bicyclist’s fault caused or contributed to an accident, children should be held to a different ‘standard of care’ than an adult depending on their age and level or maturity. Very young children are not considered to even have the ‘capacity to commit negligence’.
Consequently, a child under the age of 6 cannot be found at fault of any injuries he or she sustained in an accident. Children older than that likely do have the capacity to be negligent but the reasonable care they must take for their own safety is not measured against what an adult is expected to do, but what a ‘reasonable’ child of the same age would be expected to do for their own safety in the circumstances.
If someone, other than the bicyclist, was at least partly at fault for an accident that caused injuries to the bicyclist, compensation based on negligence law should in most cases be recoverable. That compensation called ‘damages’ by the legal system, is divided into ‘heads of damages’ that includes: pain and suffering, income losses, care expenses and out of pocket expenses.
(There is also other compensation that may be available to an injured bicyclist for the losses sustained in an accident involving a motor vehicle that does not require a finding of fault or negligence. That insurance coverage is provided through ICBC and is called ‘no fault’, ‘accident’ or ‘Part 7’ benefits’. It provides compensation to a maximum of $300,000 for certain limited types of benefits. Bicyclists may also have disability insurance coverage through their workplace or a private insurance policy.)
To advance a successful claim for damages based on the negligence of another person, the lawyers at McLarty Wolf will:
- Obtain photographic evidence of the condition of the accident scene and the bicycle/vehicle involved;
- Obtain details of the other persons who may have caused the accident and their accounts of the accident as well as statements and dash cam video from any independent witnesses:
- Obtain copies of any file created by the police who investigated the accident including any accident report created pursuant to section 249 of the Motor Vehicle Act;
- Obtain copies of any reports created by the ambulance personnel who attended the accident scene;
- Determine whether there was a defect in the road or bike path infrastructure at the scene of the accident and also determine whether a claim should be advanced against the municipality or other body responsible;
Let Us Help You.
If you are the victim of a serious bicycle accident, you need legal assistance to determine who was at fault for your injuries and what compensation can be claimed. The lawyers at McLarty Wolf have many years of experience handling all kinds of personal injury accident claims involving complex negligence (fault) determinations.
We can advise you of your rights to damages and insurance benefits and we can advance a claim on your behalf with ICBC and through the court system on a contingency fee basis. Contact us today to see how we can help you.