As the weather warms, these are the type of cases we see more of which is quite unfortunate.  It is very important for all drivers to be vigilant and cautious as more and more cyclists use our streets. 

Most impacts between a cyclist and vehicle do not end well for the cyclist, and injuries may be serious and tend to be life altering. 

We review a recent decision between cyclist and vehicle referenced as Behragam v. Paviglianiti, 2019 BCSC 818 (CanLii).  This case proceeded to trial on the issue of liability only.  Unfortunately in this case, the Plaintiff (cyclist) claims he suffered a brain injury, was unconscious at the scene for at least 10 to 15 minutes and a claim for damages is being advanced separately.

We are going to review the evidence submitted at the trial of this decision.  The arguments raised by the Plaintiff is that the Defendant was held fully responsible.  The court in this decision found the defendant 100% liable for this crash and further stated that the Plaintiff (cyclist) was not contributorily negligent in any way.

One of the issues analyzed in this case is dominant driver v. servient driver.  This is a topic we have been studying in my personal injury course and therefore, this case provides a great review on this topic.

This article will simply focus on the type of evidence submitted on a liability only trial as it pertains to this specific case but may be helpful if you are managing a case between cyclist v. vehicle crash.

Evidence submitted at trial

• Testimony of the Plaintiff
• Testimony of the Defendant
• Police Testimony
• Traffic Collision Worksheet (hand drawn diagram of the accident).

Professional Engineer

• analysis and reconstruction report
• report on when the bicycle and vehicle entered the intersection
• the driver’s ability to avoid the collision
• perception reaction time
• 3 states of reaction time
• brake / alert / surprise
• Shortest reaction time is 0.6 seconds in daylight
• Alert reaction time is 0.7 seconds in daylight
• Surprise reaction time is 1.1 seconds in daylight
• Definition of “intersection” was raised by defence engineer stating Plaintiff’s expert “narrow” interpretation

The Court did not accept the defence engineer report for the following reasons:

• Did not visit the accident site, the Plaintiffs engineer did visit the accident site
• Defence engineer uses a definition of the term “intersection” that is at odds with the statutory definition in s. 119 of the MVA.
• Various factual elements were not established in evidence
• the report of little to no value to the Court: Mazur v. Lucas, 2010 BCCA 473.

In conclusion, the Court stated that the evidence establishes that the cyclist entered and was in the intersection first and was therefore the dominant driver.  The Defendant was found 100% at fault for this accident.

Review this case further for the facts and arguments raises on the issue of dominant v. servient matter.

CONCLUSION

[59]        The standard of care, as set out in Cyr, is to “use reasonable care to satisfy himself in a timely way that there was no traffic proceeding into the intersection from his left”: at para. 22. The defendant breached that standard of care.

[60]        Notwithstanding the fact that he had the initial right of way, the defendant became the subservient driver when the plaintiff entered the intersection. The defendant was not driving with sufficient prudence and did not keep a proper lookout. As he indicated, he did not see the plaintiff before the collision.

[61]        I do not find the plaintiff contributorily negligent in this matter. The plaintiff testified that he swerved at the last minute to avoid the collision, but that it was too late. As set out in Gerbrandt v. Deleeuw, [1995] B.C.J. No. 1022 (S.C.) at para. 10:

…. [O]ne who suddenly finds himself in a place of danger and is required to consider the best means that may be adopted to evade the impending danger is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.

[62]        This is applicable in the circumstances of this case. The defendant is therefore 100% liable for the accident.

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