Liability Split Apportioned 40% Plaintiff (Cyclist) and 60% The Defendant (Vehicle)

In Heuring v. Smith, 2018 BCSC 233 the Court assesses liability between a Plaintiff (cyclist) who failed to stop at a stop sign and the Defendant (vehicle), who did not clearly see the cyclist as a result of a “blind spot” a pillar in his vehicle.  Both parties are to blame for this collision.  The Plaintiff (Cyclist) was apportioned 40% at fault due to his heightened duty of care placed on him – in that he violated a traffic law and the Defendant 60% at fault.

Review the Court’s analysis in this case:


  1. Issue 1: Liability

[60]        I have concluded that the conduct of both parties departed from the standard of reasonable care and was blameworthy.  In Bradley v. Bath, 2010 BCCA 10, the Court of Appeal reasoned as follows in assessing the apportionment of liability in cases such as that presently before me:

[24]      At common law, contributory negligence on the part of a plaintiff was a complete defence to his or her claim.  This was considered to be unjust, and legislatures in many common law jurisdictions passed contributory negligence statutes (also referred to as apportionment legislation).  The statute in this province is currently called the Negligence Act, R.S.B.C. 1996, c. 333, s. 1(1) of which reads as follows:

If by the fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree to which each person was at fault.

If damage or loss has been caused by the fault of two or more persons, s. 4 of the Act requires the court to determine the degree to which each person was at fault.  While the prerequisite to apportionment is that the damage or loss has been caused by the fault of two or more persons, the apportionment must be done on the basis of the degree to which each person was at fault, not on the basis to which each person’s fault caused the damage: Cempel v. Harrison Hot Springs Hotel Ltd., [1998] 6 W.W.R. 233, 43 B.C.L.R. (3d) 219 (C.A.).

[25]      The concept of contributory negligence was described in John G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998) at 302, as follows:

Contributory negligence is a plaintiff’s failure to meet the standard of care to which he is required to conform for his own protection and which is a legally contributing cause, together with the defendant’s default, in bringing about his injury.  The term “contributory negligence” is unfortunately not altogether free from ambiguity.  In the first place, “negligence” is here used in a sense different from that which it bears in relation to a defendant’s conduct.  It does not necessarily connote conduct fraught with undue risk to others, but rather failure on the part of the person injured to take reasonable care of himself in his own interest. …  Secondly, the term “contributory” might misleadingly suggest that the plaintiff’s negligence, concurring with the defendant’s, must have contributed to the accident in the sense of being instrumental in bringing it about.  Actually, it means nothing more than his failure to avoid getting hurt…

[61]        In apportioning liability equally in that case, the Court of Appeal considered (at paras. 26-29) whether the plaintiff failed to take reasonable care for his own safety, concluding he had not.

[62]        In Hynna v. Peck, 2009 BCSC 1057 at para. 88, the Court reasoned that, in such cases, it does not assess degrees of causation but, rather, degrees of fault:

[88]      In assessing apportionment, the Court examines the extent of blameworthiness, that is, the degree to which each party is at fault, and not the degree to which each party’s fault has caused the loss.  Stated another way, the Court does not assess degrees of causation, it assesses degrees of fault: Cempel v. Harrison Hot Springs Hotel Ltd., [1997] 43 B.C.L.R. (3d) 219, 100 B.C.A.C. 212; Aberdeen v. Langley (Township), 2007 BCSC 993 [Aberdeen]; reversed in part, Aberdeen v. Zanatta, 2008 BCCA 420.

[89]      In Alberta Wheat Pool v. Northwest Pile Driving Ltd., 2000 BCCA 505, [2000] 80 B.C.L.R. (3d) 153, Finch, J.A. (now the Chief Justice), for the majority of the Court of Appeal, explained this important principle at paras. 45-47:

In my view, the test to be applied here is that expressed by Lambert, J.A. in Cempel, supra, and the Court’s task is to assess the respective blameworthiness of the parties, rather than the extent to which the loss may be said to have been caused by the conduct of each.

Fault or blameworthiness evaluates the parties’ conduct in the circumstances, and the extent or degree to which it may be said to depart from the standard of reasonable care.  Fault may vary from extremely careless conduct, by which the party shows a reckless indifference or disregard for the safety of person or property, whether his own or others, down to a momentary or minor lapse of care in conduct which, nevertheless, carries with it the risk of foreseeable harm.

[63]        In Aberdeen v. Township of Langley, Zanatta, Cassels, 2007 BCSC 993, at para. 62, rev’d on other grounds 2008 BCCA 420, Mr. Justice Groves addressed the challenge of assessing blameworthiness under the Negligence Act, R.S.B.C. 1996, c. 333, and considered the following factors identified by the Alberta Court of Appeal in Heller v. Martens, 2002 ABCA 122, in assessing relative degrees of fault:

  1. The nature of the duty owed by the tortfeasor to the injured person…
  2. The number of acts of fault or negligence committed by a person at fault…
  3. The timing of the various negligent acts. For example, the party who first commits a negligent act will usually be more at fault than the party whose negligence comes as a result of the initial fault…
  4. The nature of the conduct held to amount to fault.  For example, indifference to the results of the conduct may be more blameworthy…  Similarly, a deliberate departure from safety rules may be more blameworthy than an imperfect reaction to a crisis…
  5. The extent to which the conduct breaches statutory requirements.  For example, in a motor vehicle collision, the driver of the vehicle with the right of way may be less blameworthy…

[64]        Mr. Justice Groves considered it appropriate to add the following factors in assessing relative degrees of fault at para. 63:

  1. the gravity of the risk created;
  2. the extent of the opportunity to avoid or prevent the accident or the damage;
  3. whether the conduct in question was deliberate, or unusual or unexpected; and
  4. the knowledge one person had or should have had of the conduct of another person at fault.

[65]        In light of these case authorities and the evidence before me, it is clear both parties are blameworthy and that fault ought to be apportioned to each.  But the question remains, to what degree?  Mr. Heuring did not take reasonable care of his own safety.  Having chosen to enter the crosswalk, he failed to dismount from his bicycle and instead rode through it.  Further, while he testified that he stopped approximately 10 feet back from the stop sign or stop line before entering the Intersection, he did not actually stop at the stop sign or stop line.  Had he stopped at the stop sign or stop line and waited, or had he dismounted and walked his bike across the crosswalk, Mr. Heuring would have had a better view of oncoming traffic and he could have more accurately assessed whether Mr. Smith’s vehicle was actually coming to a stop or had stopped.  However, Mr. Heuring’s evidence establishes that he wrongly assumed Mr. Smith’s vehicle was coming to a stop.

[66]        Mr. Heuring not only violated ss. 183 (2)(b) and ss.186 (a) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, and compromised his own safety in doing so, he also breached the heightened duty of care placed upon him by the common law in such circumstances:  see Bradley at para. 27.  As stated by this Court in Hadden v. Lynch, 2008 BCSC 295 at para. 59, an “individual who is violating a traffic law assumes a heightened duty of care”.  Mr. Heuring testified that he saw Mr. Smith’s vehicle and “assumed” it was going to stop.  He did not attempt to make eye contact with Mr. Smith or to ensure that he did in fact stop.  I am not satisfied that Mr. Heuring proceeded with the caution necessary to meet his heightened standard of care while cycling through the crosswalk.

[67]        Mr. Heuring had an opportunity to prevent the Accident by stopping at the stop sign and waiting until the traffic had come to a complete stop before proceeding.  Alternatively, he could have walked his bike across the Intersection through the crosswalk.  Had he done so, he would not only have been more visible, he would have also provided Mr. Smith with a greater response time within which to stop.

[68]        Mr. Smith also could have, and should have, taken greater care.  While I accept his evidence that he stopped at the Intersection and was proceeding slowly at the time of impact, he candidly admitted he did not take steps to look around the “blind spot” in his field of vision (i.e., the “A” pillar in his car).  Even though Mr. Heuring was not supposed to be cycling through the crosswalk, a marked crosswalk is “precisely the place where a motorist could reasonably expect to encounter another user of the road”: Niitamo v. Insurance Corporation of British Columbia, 2003 BCSC 608 at para. 22 (cited in Hadden).  Had Mr. Smith been more vigilant in observing the traffic around him, he too could have taken preventative measures.

[69]        I accept the entirety of Mr. Smith’s recollection of the events surrounding the Accident.  He was very credible and his recollection was clear in recounting the Accident.  He responded to cross-examination in a forthright manner, openly acknowledging that he could have done more to prevent the Accident but also underscoring that he was being careful in his approach.  I accept Mr. Smith’s recollection that: he quickly applied his brakes and brought his vehicle to a stop when he saw Mr. Heuring; he was not on his cell phone at the time of the impact but called a colleague immediately afterward; he was just beginning to accelerate, after stopping at the Intersection, when the Accident occurred; the impact was “modest” (in his words); Mr. Heuring placed his hands on the front of the truck’s hood to stop himself; he did not run over top of Mr. Heuring; he offered to put the chain back on the bike; and he offered to take Mr. Heuring to the hospital and drive him home but that Mr. Heuring declined.  I also accept Mr. Smith’s recollection that Mr. Heuring’s bicycle was not damaged except that the chain had come off.  I find it curious that Mr. Heuring threw his bicycle in the bushes and never bothered to retrieve it.  Whether or not the bicycle had been badly damaged, he could have had a family member or friend retrieve it later that day.  Mr. Heuring’s recollection of the events surrounding the Accident lacked elements of inherent cohesiveness and logic.  By comparison, Mr. Smith’s recollection, his narrative of events, and his presentation as a witness were very forthright and more credible.

[70]        Given the specific facts of this case, and the conduct of each party, I am of the view that liability should be apportioned 40% against Mr. Heuring and 60% against Mr. Smith.  Accordingly, the loss assessment for each category of damages will be reduced by 40%.

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