Bike accidents often have very serious consequences for the rider both physical and potentially financial. If you have been hit by a car while riding your bike, there will be questions about who is liable for the accident and who has the onus of proof if you are injured and make a claim for damages against the driver of the motor vehicle.
The Onus of Proof
Usually, in civil cases, the Plaintiff has the onus of proving that the Defendant was negligent. If that can’t be demonstrated on a balance of probabilities (i.e., that it is more likely than not that the Defendant was negligent), the Plaintiff will not succeed in recovering any damages.
However, Alberta’s Traffic Safety Act, s. 186 states as follows:
Onus on owner or driver
186(1) If a person sustains loss or damage by reason of a motor vehicle being in motion, the onus of proof in any civil proceeding that the loss or damage did not entirely or solely arise through the negligence or improper conduct of the owner or driver of the motor vehicle is on that owner or driver.
(2) This section does not apply in the case of an accident between motor vehicles on a highway.
(3) In this section, “motor vehicle” includes a self‑propelled implement of husbandry.
This section reverses the usual onus of proof in civil lawsuits. In circumstances where a motor vehicle hits a cyclist or a pedestrian, the driver of the motor vehicle is presumed to be negligent unless he or she can prove that the loss or damage did not arise entirely or solely through his or her negligence. This presumption introduces the concept of contributory negligence.
Section 1 of the Alberta Contributory Negligence Act provides as follows:
Apportionment of liability
1(1) When by 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 in which each person was at fault but if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally.
(2) Nothing in this section operates to render a person liable for damage or loss to which the person’s fault has not contributed
Car and bike collisions
Applying the Contributory Negligence Act to the case of a motor vehicle and bicycle collision means that even if the driver of the vehicle was negligent in causing the collision, the cyclist could still bear some responsibility for the collision if he or she failed to take reasonable steps to look out for his or her own safety.
How courts assess contributory negligence
In approaching contributory negligence in motor vehicle/bicycle collisions, Courts in Alberta use what is called the “comparative blameworthiness approach.” It requires a Judge to examine all of the circumstances of the misconduct of both parties to determine their relative negligence in causing the collision – i.e., the courts will look at the degree to which each party departed from the normal standard of care and apportion responsibility on a percentage basis (75/25, 50/50, etc.). If contributory negligence is found on the part of the cyclist, his damage award will be reduced accordingly. For example, if his damages were assessed at $100,000 and he was found 25% at fault of the collision, the cyclist would only receive damages of $75,000.
Factors affecting contributory negligence on the part of cyclists
Some of the things Courts will consider in assessing whether a cyclist is partly at fault for his or her injuries include:
- In the case of a head injury, was the cyclist wearing a helmet and, if not, would the wearing of a helmet have prevented or lessened the extent of the head injury;
- Was the cyclist wearing headphones such that he or she was not capable of hearing traffic and therefore not fully aware of his or her surroundings;
- Did the cyclist breach a statute or regulation pertaining to the operation of a bicycle? In other words, were they following the rules of the road for cyclists? For example, s. 77 of the Use of Highways and Rules of Road Regulation requires a cyclist in most circumstances to operate their bike as near as practicable to the right curb or edge of the road. Section 78 of that regulation also requires cyclists to ride in single file except when overtaking and passing another bike and s. 75 of that same regulation imposes many of the duties of the driver of a motor vehicle on a cyclist when it comes to things like obeying traffic control devices and yielding to pedestrians.
- Other factors that may have an impact on whether a cyclist is found to be contributorily negligent include the following:
- Whether the cyclist had been riding on the sidewalk prior to entering a roadway;
- Whether the cyclist was riding or walking his or her bike through a crosswalk at the time of the accident;
- Whether the cyclist took care to check that traffic had come to a stop before entering a crosswalk or intersection; and
- Whether the collision took place during daylight hours and, if not, the steps taken by the cyclist to ensure that he or she was visible to motorists. The same sorts of considerations apply if the cyclist was biking in bad weather where visibility was an issue.
Rules of the road (and sidewalks) for cyclists
There is sometimes confusion over the rules that apply to cyclists and using sidewalks for riding. The rules in place promote safety for cyclists, pedestrians and motorists. To review the rules on bikes and sidewalks click HERE.
Every case is different
Every case has unique facts that may have an impact on the outcome of a personal in injury claim. Our experienced personal injury lawyers will be able to help you determine the relevant facts and what they mean for your case.
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