IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130827

Docket: M111325

Registry:
Vancouver

Between:

Trevor Nelson

Plaintiff

And

Lafarge Canada
Inc.
Joseph Conarroe

Defendants

Before:
The Honourable Madam Justice Dickson

Reasons for Judgment

INTRODUCTION

[1]            
On March 31, 2010 the plaintiff, Trevor Nelson, was cycling in the
eastbound curb lane through the intersection of Hastings and Nanaimo Streets in
Vancouver when he collided with a large right-turning truck (the "Accident"). 
The truck was driven by the defendant, Joseph Conarroe, and owned by the
defendant, Lafarge Canada Inc.  After signalling his intention to do so, Mr. Conarroe
turned right from Hastings onto Nanaimo without noticing Mr. Nelson on his
bicycle nearby before, during or immediately after the Accident.  The truck
struck and dragged Mr. Nelson along the roadway until Mr. Conarroe
was alerted to what had happened by bystanders waving and calling out.

[2]            
Mr. Nelson was seriously injured as a result of the Accident.  He
claims damages for those injuries, which he says were caused by Mr. Conarroe’s
negligence in failing to observe him and turning right as he was cycling
through the intersection.  The defendants respond that Mr. Nelson is the
negligent party and solely responsible for the Accident because he overtook the
truck on the right when it was unsafe to do so.  By agreement, the parties seek
a determination as to liability on a summary trial.

[3]            
The evidence presented at the summary trial was unusual because the
Accident was captured on video surveillance recordings from a nearby grocery market
(the "Video").  The Video provides two perspectives:  an eastward
view from a camera located close to the intersection and another eastward view
from slightly further back.  Several versions of Video footage were presented at
trial in DVD form and marked as exhibits.  The Video evidence was supplemented
by affidavit evidence of the parties.

[4]            
Video surveillance recordings are often described to juries as a "silent
witness".  Depending on factors such as clarity and angle, it may be said that
they constitute cogent evidence unsullied by human frailties such as bias,
emotion and memory distortion.  This case illustrates the truth of such remarks.

[5]            
But for the Video a judge or jury in this case would have been required
to find facts based on the parties’ competing accounts of what occurred shortly
before, during and after the Accident.  Those accounts differed in many
respects, but coalesced on one key point.  In statements given after the
Accident both Mr. Nelson and Mr. Conarroe claimed the traffic light
at the intersection was red immediately prior to the Accident.  As is clear
from the Video, however, both were wrong.  In fact, and importantly, the light
was green for several seconds before it occurred.

FACTS

[6]            
Mr. Nelson was 29 years old at the time of the Accident.  He was an
experienced cyclist employed as a bicycle mechanic at a bike shop in North
Vancouver.

[7]            
Although he held a valid driver’s license, Mr. Nelson did not own
or drive a motor vehicle.  Rather, he used his bicycle as his primary means of
transport in and around the Lower Mainland.

[8]            
On the morning of the Accident, Mr. Nelson left his home in
Vancouver and cycled toward his work place in North Vancouver.  The day was
sunny and calm.  The roads were dry.  Visibility was good.

[9]            
The Accident happened at approximately 9:20 a.m. on March 31, 2010.
Immediately beforehand, Mr. Nelson was cycling east on Hastings toward the
intersection with Nanaimo (the "Intersection").

[10]        
The Intersection is controlled by traffic lights.

[11]        
Traffic was moderately heavy at the time of the Accident.

[12]        
There are three eastbound lanes on Hastings in the area of the
Intersection:  a curb lane, a middle lane, and a center lane.  Parking was
permitted in the curb lane when the Accident occurred.  Immediately prior to
its occurrence there were at least three vehicles parked on Hastings in the
block approaching Nanaimo from the west side of the Intersection.  On the east
side of Hastings, the curb lane was filled with parked cars.

[13]        
The curb lane is 134 inches wide.  In the block of Hastings approaching
Nanaimo from the west side the parked cars were positioned close to the curb in
a regular manner.  I am satisfied there was sufficient room left in the curb
lane for a bicycle to proceed without crossing the marked lane line and
entering into the middle lane.  I am also satisfied the same is true of the
block on the other side of Nanaimo.

[14]        
Mr. Nelson was cycling in the curb lane eastbound toward the
Intersection immediately prior to the Accident.  It is impossible to estimate
his speed with precision, but it is clear from the Video that he was cycling
hard and fast.

[15]        
The traffic light turned green several seconds before Mr. Nelson
arrived at the Intersection.  When he entered it, he was struck by the front
grill of the right-turning cement truck driven by Mr. Conarroe (the "Truck").

[16]        
The Video shows Mr. Nelson cycling hard and fast alongside the
Truck as the two approached the Intersection in tandem.  Mr. Nelson’s
speed exceeded the Truck’s and it is apparent he was overtaking it on the right
as the Truck turned onto Nanaimo.

[17]        
Mr. Nelson swore an affidavit that was filed on the summary trial. 
In this affidavit, he deposed:

Although I have a clear and
present recollection of the events leading up to me arriving at the
intersection of East Hastings Street and Nanaimo Streets my only recollection
of the actual impact is of me entering the intersection at Nanaimo Street on a
green light and then doing a left shoulder check and seeing the grill of a
large truck bearing down on me.

[18]        
Prior to swearing the affidavit, however, Mr. Nelson had provided a
statement dated June 3, 2010 at his lawyer’s office.  The statement was based
on his memory of events before he had an opportunity to review other
materials.  In contrast, he swore the affidavit after reading police reports
and watching the Video.  In paragraph 16, he deposed:

Upon revisiting the circumstances
of the ACCIDENT months later and with the benefit of further information,
including the Vancouver Police Department report, I realized that my
description of the incident as entrenched in the statement I had earlier
provided was erroneous in a couple of respects.  I then realized that I had not
stopped at the intersection to drink from my water bottle nor had I unclipped
my bike shoes nor stood for approximately thirty seconds waiting for the light
to change.  When I provided this information to my lawyer and through him to the
Insurance Corporation of British Columbia, I assumed it to be true and accurate
although upon reviewing the police report and corresponding surveillance video
CD that was later provided to me I realized that my recollection of the actual
incident was, in these respects, not accurate.  I was mistaken and now realize
that I had not stopped at Nanaimo Street but had already entered the
intersection and had begun to cross it when struck and dragged by the cement
truck.  Upon reflection I realized that my description of unclipping my shoes
and so forth must have been constructed by me premised upon my usual and,
indeed, invariable practice when stopping my bicycle at an intersection.

[19]        
I accept that Mr. Nelson recalls seeing the grill of the Truck
bearing down upon him at the time of impact, as deposed in his affidavit.  I
conclude, however, that, standing alone, his recollection of events surrounding
the Accident is otherwise unreliable.  In reaching this conclusion I have
considered the strikingly different version of events Mr. Nelson gave
before and after seeing the Video.  I have also considered the fact that Mr. Nelson
was seriously injured in the Accident, which may have compromised his memory
and confused him as to precisely what occurred.

[20]        
Mr. Nelson testified on discovery that he does not recall if he
noticed the Truck as he cycled toward the Intersection.  He acknowledged,
however, and I find, that at some point he became aware of a large vehicle
travelling beside him in the middle lane.  This recollection, vague though it
may be, is consistent with what is depicted in the Video.  So, too, is Mr. Nelson’s
acknowledgement that, as he cycled along Hastings, his attention was focused on
where he was going, straight ahead.

[21]        
Mr. Nelson did not make eye contact with Mr. Conarroe as the
two travelled along Hastings and entered the Intersection in tandem.  He did
not consider whether he might have been in the Truck’s blind spot at any point
on Hastings.  He did not check to see if the Truck was signaling a right turn.

[22]        
I am satisfied that, as is his common practice, Mr. Nelson did perform
a shoulder check as he entered the Intersection.  At that point, however, the
Truck was already turning right and it was too late to avoid the impact.

[23]        
Mr. Conarroe was 45 years old at the time of the Accident.  He was
employed by Lafarge as a "mixer driver" and had driven cement trucks
for approximately 12 years.

[24]        
When Mr. Conarroe started work on the morning of the Accident he
was assigned the Truck to operate.  The Truck was familiar to him as he had
driven it many times in the preceding four years.  He performed a pre-trip
inspection before setting out for the job site and determined that the Truck was
in good working order.

[25]        
The Truck is very tall and very heavy.  It has a hood that is higher
than Mr. Conarroe, who stands 5’10” tall.  When sitting in the driver’s
seat, he is positioned approximately 7 feet above the ground.

[26]        
The Truck has two turn signals:  one at the rear, the other at the
front.

[27]        
At the rear of the Truck on each side is an approximately 4 inches in
diameter circular red flashing turn signal.  The signal light is embedded in
the metal casing that forms the rear wheel well and located 47 inches off the ground,
out to the side.

[28]        
The other turn signal is mounted to the outside of the Truck’s front
fender in each front corner.  It is a square orange signal light located 66
inches off the ground and approximately 4.5 inches wide.

[29]        
The Truck has rear view mirrors, side view mirrors, and convex mirrors. 
The side view mirrors are equipped with circular convex mirrors mounted at the
base.  The right such convex mirror is located 72 inches, or 6 feet, to the
right of the driver.  There are also convex mirrors mounted at the front hood
of the Truck extending out on a bracket.

[30]        
Both sets of convex mirrors help the driver to see objects in the
immediate vicinity.  Objects which are several feet to the side of the Truck
are reflected near the rims of the convex mirrors, however, where images are
distorted and shrunken.  By contrast, objects which are close to the Truck are
reflected near the centre of the convex mirrors, which also distorts by
expanding the object’s size.  As a result, objects near the rims appear reduced
in size and objects reflected in the centre appear enlarged.

[31]        
The convex mirror mounted at the base of the side view does not allow
the driver to see objects adjacent to or in front of the mirror.

[32]        
The convex mirror mounted on the extending bracket out from the front
corner of the hood helps the driver see objects that are very close to the
front of the Truck.  Unless an object is near the front corner of the Truck,
however, it will be quite difficult for the driver to see.

[33]        
The convex mirrors do not help the driver to see objects which are
parallel to, or in front of, the larger of the two convex mirrors and which are
located several feet to the side of the Truck.

[34]        
As is apparent from the foregoing, despite its mirrors the Truck has
many blind spots.  The area beneath the right front hood is one of them,
particularly when an object is close to the hood.  For example, when a car is located
beneath the right front of the hood it cannot be seen by the driver of the
Truck.

[35]        
After performing his pre-trip inspection on the morning of the Accident,
Mr. Conarroe loaded the Truck with cement at the Larfarge Harbour Plant. 
He then set out for the job site:  a sidewalk repair on Nanaimo Street.

[36]        
En route to the job site Mr. Conarroe turned onto Hastings and
proceeded eastbound in the middle lane toward Nanaimo.  In an affidavit filed on
the summary trial, he deposed that he saw Mr. Nelson cycling eastbound on
the sidewalk near Lakewood Drive, but said he did not see him again until after
the Accident occurred.  He deposed further that, after driving past Mr. Nelson,
he continued along Hastings, which is generally sloped uphill in this area.  As
he approached the Intersection, he stopped because the light governing
eastbound traffic was red.  At the same time, he activated his right turn
signal.

[37]        
Mr. Conarroe went on to depose that there were at least four or
five vehicles stopped ahead of him in the middle eastbound lane on Hastings. 
He was a little less than half a block from the Intersection when he came to a
complete stop.  He said that Mr. Nelson was nowhere to be seen as he
waited with other traffic at the red light on Hastings.  When the light turned
green, he said he started to move the Truck toward the Intersection.

[38]        
According to Mr. Conarroe, when he started to move the Truck after
the light turned green Mr. Nelson was still not visible in front of him,
to his side, or behind him.  He gradually picked up speed until he reached
approximately 5 kph, at which point he had reached Nanaimo.  His right turn
signal remained activated throughout as he approached the Intersection and
prepared to execute his turn.  The Truck remained in first gear from the time
he started up at the green light until after the Accident.

[39]        
Mr. Conarroe deposed further that, as he approached Nanaimo, he
looked back and forth, and up and down Nanaimo, to ensure that traffic was
totally clear so he could proceed with his right turn.  Before executing the
turn, he said he looked in all of the Truck’s mirrors but did not see Mr. Nelson. 
He continued in first gear as he executed the right turn onto Nanaimo.  The right
turn signal light remained activated before, during, and after the turn.

[40]        
Mr. Conarroe turned the Truck from the middle lane of Hastings into
the middle lane of Nanaimo and proceeded for approximately 100 feet
southbound.  He stopped the Truck, however, when he noticed people waving at
him from a nearby bus shelter.  He stood up, peered down in front of the grille
and saw a bicycle handlebar sticking out beneath it.  He did not see or hear
anything at the time of impact and did not know he had been dragging Mr. Nelson
and his bicycle executing the right turn.

[41]        
According to Mr. Conarroe, he did not see Mr. Nelson again
after passing him cycling on the sidewalk near Lakewood Drive until after the
Accident.  He also did not hear a bell, a horn or any other form of auditory
warning of Mr. Nelson’s presence near the Truck.  He conceded, however,
that the Truck was making a great deal of noise.

[42]        
Like Mr. Nelson, Mr. Conarroe changed his account of the
Accident after he watched the Video.  For example, in his statement made
shortly after the Accident Mr. Conarroe said the traffic light changed
from green to yellow to red as he approached the Intersection on Hastings. 
After seeing the Video, however, he revised his account and stated he had come
to a complete stop about four or five cars back from the Intersection in
response to an existing red light.  An extract from the transcript of his discovery
includes the following exchange in this regard:

Q:        In your statement, second paragraph, at the
bottom, "At about nine-twenty, I was heading eastbound on Hastings and
began to slow down as I neared the intersection of Hastings and Nanaimo.  I
slowed down as I needed to turn on Nanaimo.  As I approached the intersection,
the light for Hastings changed from green to yellow and then red."  Does
that assist you memory?

A:         No, it doesn’t.

Q:        "And I came to a complete stop".  Is
that accurate?

A:         Well, I knew I
came to a complete stop.  And when I was talking to police officers, I thought
I was, because he was questioning me right after the accident, I thought I was
at the intersection, but I did come to a complete stop about four, five cars
back.  I mixed those two things up.

[43]        
In his statement Mr. Conarroe also described being approached by
two pedestrians after the Accident.  He said they told him the cyclist had
tried to get around the Truck and had run the red light.  After seeing the
Video, however, Mr. Conarroe testified on discovery that he was unsure
whether, in fact, the light was red, as he had previously asserted.  He went on
to testify that he recalled being told by the pedestrians that the bicyclist had
tried to go around his cab.

[44]        
As with Mr. Nelson, the changes in Mr. Conarroe’s account lead
me to treat his evidence with considerable caution.  Although uninjured, he was
traumatised by the Accident and this may have coloured his recollection and
perception of what transpired.

[45]        
In the circumstances, I am not satisfied that Mr. Conarroe saw Mr. Nelson
cycling on the sidewalk near Lakewood Drive as he drove eastbound on Hastings. 
I am also not satisfied that Mr. Conarroe looked around the Truck before
he began to turn right at the Intersection to the extent that he now claims. 
In particular, I do not accept that, as he deposed, Mr. Nelson was nowhere
to be seen as Mr. Conarroe sat with other traffic at the red light on
Hastings waiting for the light to turn green.

[46]        
It is clear from the Video that Mr. Conarroe did engage the Truck’s
right signal prior to executing his right turn onto Nanaimo.  I accept that he
did so well before he arrived at the Intersection after the light had turned
green.

[47]        
I also accept that Mr. Conarroe looked around as he commenced his
right turn from Hastings onto Nanaimo.  In so doing, he checked the Truck’s
mirrors in an effort to determine what and who might be in the immediate area. 
I accept further that Mr. Conarroe was travelling at something in the
range of 5 kph as he executed the right turn, although his speed cannot be
estimated with precision.  He did not, however, pause or stop from the time he
started moving the Truck toward Nanaimo in response to the newly green light to
the time he commenced his right turn.

[48]        
In addition, and importantly, I am not satisfied that Mr. Conarroe
maintained a continuous and consistently vigilant look-out from the point at
which he stopped for the red light on Hastings to the point at which he
commenced his right turn onto Nanaimo.  Had he done so, I find he could and would
have seen Mr. Nelson cycling hard and fast eastbound in the curb lane behind
and then beside the Truck.

[49]        
In making the above noted finding, I accept that Mr. Nelson was travelling
in one of the Truck’s blind spots when Mr. Conarroe commenced his right
turn onto Nanaimo.  This is why Mr. Conarroe did not see Mr. Nelson
at that precise moment.  Nevertheless, I also find that, as Mr. Nelson
cycled eastbound behind and beside the Truck, he would have been visible to Mr. Conarroe
at some point before he commenced the right turn had he checked the Truck’s
mirrors carefully and repeatedly.  Unfortunately, he did not.

LEGAL FRAMEWORK

[50]        
In MacEachern (Committee of) v. Rennie, 2010 BCSC 625, Ehrcke J.
conducted a helpful review of negligence principles in a case involving a
cyclist and a heavy commercial vehicle.  In so doing, he identified the four
essential elements a plaintiff must prove in a negligence action:

                
i.                   
The defendant owed a duty of care to the plaintiff (a question of law
for the trial judge to decide).

               
ii.                   
The defendant breached that duty of care by failing to exercise the
standard of care required of a reasonable and careful person in the
circumstances (a question of fact for the trier of fact to decide).

             
iii.                   
The plaintiff suffered damage (a question of fact for the trier of fact
to decide).

             
iv.                   
The plaintiff’s damage was caused, in fact and in law, by the defendant’s
breach (a question of fact for the trier of fact to decide).

He went on to note that the existence of a duty of care
presupposes a reasonable foreseeability of harm.

[51]        
If a duty of care exists, the standard of care is not measured against
perfection.  Rather, the standard of care is to be measured against the conduct
of a person of ordinary prudence and intelligence in the relevant community:  a
matter which will depend heavily on the facts of each case: Ryan v.
Victoria (City), [1999] 1 S.C.R. 201; MacEachern.

[52]        
Statutory requirements are relevant to the applicable standard of care,
but the two are not necessarily co-extensive.  A statutory breach does not
automatically give rise to civil liability, but it may amount to evidence of what
is reasonable conduct in a particular circumstance.  For this reason, courts
consider the legislative framework in which people and companies must operate
in deciding whether an act or omission is negligent.  The underlying
obligation, however, is always to take reasonable care: Ryan; MacEachern.

[53]        
In this case, there are several relevant statutory provisions to be
considered.  They include ss. 158, 183 and 190 of the Motor Vehicle Act,
R.S.B.C. 1996, c. 318 (the "Act") and City of Vancouver
Street and Traffic Bylaw No. 2849, s. 59 ("Bylaw 2849").

[54]        
Section 158 of the Act provides:

Passing on right

158 (1) The driver of a vehicle must not cause or
permit the vehicle to overtake and pass on the right of another vehicle, except

(a)        when the vehicle
overtaken is making a left turn or its driver has signalled his or her
intention to make a left turn,

(b)        when on a laned roadway
there is one or more than one unobstructed lane on the side of the roadway on
which the driver is permitted to drive, or

(c)        on a one way street or a
highway on which traffic is restricted to one direction of movement, where the
roadway is free from obstructions and is of sufficient width for 2 or more
lanes of moving vehicles.

(2)        Despite subsection (1), a driver of a vehicle must
not cause the vehicle to overtake and pass another vehicle on the right

(a)        when the movement cannot
be made safely, or

(b)        by driving the vehicle off the roadway

[55]        
Section 183 of the Act provides, in part:

Rights and duties of operator of cycle

183 (1) In addition to the duties imposed by this
section, a person operating a cycle on a highway has the same rights and duties
as a driver of a vehicle.

(2)        A person operating a cycle

(a)        must not ride on a
sidewalk unless authorized by a bylaw made under section 124 or unless
otherwise directed by a sign,

(c)        must, subject to
paragraph (a), ride as near as practicable to the right side of the highway

(3)        Nothing in subsection (2) (c) requires a person to
ride a cycle on any part of a highway that is not paved

(14)      A person must not operate a cycle

(a)        on a highway without due
care and attention or without reasonable consideration for other persons using
the highway,

[56]        
Section 190 of the Act provides:

Manner of parking

190 Except when a
municipality, a treaty first nation or the minister responsible for the
administration of the Transportation Act permits, a driver must not
stop, stand or park a vehicle on a roadway other than on the right side of the
roadway and with the right hand wheels parallel to that side, and where there
is a curb, within 30 cm of the curb.

[57]        
Section 59 of Bylaw 2849 provides:

Slow Moving Vehicles

59.       The driver of every
slow moving vehicle shall drive such vehicle as close as possible to the right
hand edge or curb of any street unless it is impracticable to travel on such
side. For the purpose of this section a bicycle shall be regarded at all times
as a slow moving vehicle.

[58]        
In Smeltzer v. Merrison, 2012 BCCA 13, the Court of Appeal
considered the ambit of s. 158 of the Act in a case where a claim
against a defendant who passed on the right was dismissed at the trial level. 
In allowing the appeal and apportioning liability, Lowry J.A. discussed, among
other cases, R. v. Dickson, 2003 BCSC 437 and Salaam v. Abramovic,
2010 BCCA 212.  He stated:

[13] Dickson, an appeal of a cyclist’s conviction
for passing on the right, contains the most complete discussion of s. 158
to which we are referred. I would respectively endorse what was said there.
Section 158(1) prohibits one vehicle passing another on the right: "The
driver of a vehicle must not cause or permit the vehicle to overtake and pass
on the right of another vehicle…" There are only three exceptions.
Essentially, passing on the right is permitted when the overtaken vehicle is
turning left, when passing on a laned roadway, or when passing on a one-way
street where room permits. A "laned roadway" is defined. It means a
road that is divided into two or more marked lanes for vehicles proceeding in
the same direction. The exceptions are qualified by subsection (2) which
prohibits any passing on the right when it cannot be done safely or by driving off
the road.

[19]      In Salaam, this Court found a defendant
driver who had the right of way at an intersection negligent for having failed
to take the steps it was said a reasonable driver would have taken in the
circumstances to avoid a collision once it became apparent the plaintiff, who
bore the greater proportion of fault, was not yielding as required. In
reviewing the governing authorities and drawing in particular on what is often
cited from Walker v. Brownlee, supra, Cartwright and Locke JJ.
concurring at 460-461, the following was said:

[25]      A driver like the defendant, who is in a dominant
position, will not typically be found to be liable for an accident. Drivers are
generally entitled to assume that others will obey the rules of the road. Further,
though defensive driving and courteous operation of motor vehicles are to be
encouraged, they do not necessarily represent the standard of care for the
purposes of a negligence action. A driver will not be held to have breached the
standard of care simply because he or she failed to take extraordinary steps to
avoid an accident or to show exceptional proficiency in the operation of a
motor vehicle.

[23]      This accident happened
because neither driver saw the other before they collided. That was because
both proceeded in a manner that contravened the provisions of the Act:  Ms. Merrison
breached s. 158 and Ms. Smeltzer breached s. 166.  Ms. Merrison
could not see Ms. Smeltzer’s vehicle while she was wrongfully passing the
cars and the truck ahead of her on the right and she was not looking where she
should have been;  Ms. Smeltzer could not see Ms. Merrison’s car
while her vision was obstructed and she did not take steps to ascertain her
turn could be safely made.  I do not consider it possible to establish
different degrees of fault in the circumstances of this case such in accordance
with s. 1 of the Negligence Act, R.S.B.C. 1996, c. 333,
liability is to be apportioned equally.

[59]        
Like Dickson, Jang. v. Fisher, [1990] B.C.J. No. 2560,
is a case that involved a cyclist who passed other traffic on the right.  Like Smeltzer,
Jang was a successful appeal of a dismissal order made at trial.

[60]        
The Court of Appeal overturned the dismissal of the plaintiff cyclist’s
action in Jang against a defendant driver in an accident which occurred
where both were travelling westbound toward a red light.  The roadway had three
westbound lanes and parking was permitted in the curb lane.  Immediately before
the accident the plaintiff was cycling slowing toward the intersection in the
curb lane to the left of parked cars.  The defendant driver moved from the
centre lane into the curb lane ahead of the parked cars without looking to her
rear and noticing the cyclist.  When she did, the plaintiff’s bicycle struck
the right front of the defendant’s car.

[61]        
In dismissing the action the trial judge in Jang held there was
no basis for the defendant to expect a cyclist would come up as the plaintiff
did, passing the line of parked cars with cars on his left that had stopped for
the red light at the intersection.  The Court of Appeal, however, disagreed. 
In reaching its conclusion the Court of Appeal held that, for a cyclist, a lane
may be regarded as "unobstructed" for purposes of s. 160(1)(b)
of the Act (now s. 158(1)(b)) if there is ample room between the
parked cars and the marked lane line for a bicycle to pass freely.

[62]        
Counsel for the defendants submits that Jang has been modified by
the Court of Appeal’s more recent decision in MacLaren v. Kucharek, 2010
BCCA 2006.  In MacLaren, the Court found a cyclist riding at the outer
edge of a through lane in an effort to travel as near to the right as
practicable was negligent because he failed to "take a lane" as he
entered an intersection.  Ryan J.A. stated as follows in this regard:

[27]      The appellant says that Mr. McLean was
contravening s. 158 by riding to the right of the centre lane and passing,
on the right, vehicles travelling in that lane.  It was the appellant’s
position that none of the exceptions set out in s. 158(1) and (2) applied
to Mr. MacLaren’s situation.

[28]      The respondent argued that the appellant’s proposed
interpretation of s. 158 of the Motor Vehicle Act would lead to
absurdities.  I do not propose to analyze these arguments as it is unnecessary
to determine whether s. 158 would permit Mr. MacLaren in this case to
pass on the right.  In my view it not so much that Mr. MacLaren was
passing on the right when he was struck by the appellant, but that he was
riding between what were effectively two lanes of travel before entering the
Laurel Drive intersection.  In my view, s. 183(2) (which required him to
ride as near as practicable to the right side of the highway), did not
authorize him to ride between two lanes of travel.  For Mr. MacLaren to
ride between two unmarked but commonly travelled lanes immediately prior to
reaching the Laurel Drive intersection was dangerous because a northbound
left-turning driver would have little opportunity to see him as he cycled
alongside vehicles to his left.  In my view, given the configuration of the
roadway and the pattern of traffic in this case, for Mr. MacLaren to cycle
alongside vehicles to his left created a danger both to himself and to the
appellant.

[29]      While Mr. MacLaren did the right thing by
moving out of the curb lane, he should have moved in behind the vehicles
travelling toward the "through" lane, not beside them.  By cycling
between lanes Mr. MacLaren did not show sufficient care for his own person
to avoid a finding of contributory negligence.  Taking a lane was the only way,
in my view, that a bicyclist could have satisfied the mandate of s. 183(2)(c)
to safely travel as near as practicable to the right of the highway.

[30]      It cannot be said,
based on the evidence at trial, that the decision of the trial judge that Mr. Kucharek
was negligent in making his left-hand turn is unreasonable.  The trial judge
found that Mr. Kucharek completed his turn negligently by failing to
ensure that there was no traffic approaching that would constitute an immediate
hazard.  In other words the appellant did not see the bicyclist, but had he
exercised the required care, he should have.  At the same time I am of the view
that the trial judge erred in failing to conclude that Mr. MacLaren, in
choosing to ride in between the two travel lanes and beside the stopped pick-up
rather than in the lane of travel behind it, did not take reasonable care for
his own safety.  His failure to take reasonable care for his own safety was one
of the causes of the accidents.  Mr. MacLaren was therefore contributorily
negligent.

[63]        
I do not agree with counsel that the broad principle stated in Jang
has been modified by MacLaren.  The issue in Jang was whether a
commonly configured curb lane containing parked cars is "unobstructed"
for a cyclist if there is ample room between the parked cars and the marked
lane line to allow a bicycle to pass.  In contrast, MacLaren concerned
an idiosyncratically configured roadway with two de facto lanes and a
right-turn-only lane at the intersection.  In this factual context, the Court
of Appeal in MacLaren found it was dangerous for a cyclist to cycle
alongside vehicles to his left and fail to "take a lane".  The Court
did not comment explicitly or implicitly, however, on whether a curb lane with
ample room for a cyclist to pass between parked cars and the lane line should
no longer be considered a through lane for cyclists.  In my view, the law in
this regard remains as set out in Jang.

[64]        
In Hadden v. Lynch, 2008 BCSC 295, Bauman J. (as he then was)
dismissed the plaintiff cyclist’s claim against the defendant driver of a right-turning
truck.  In the course of his analysis he reviewed the seminal decision of Walker
v. Brownlee and Harmon, [1952] 2 D.L.R. 450 (S.C.C.), regarding the duties
of dominant and servient drivers in approaching and entering intersections, as
well as several cases in which Walker was applied.

[65]        
The plaintiff in Hadden cycled along the sidewalk and into a
crosswalk where he was struck by the defendant, who turned right from a
dedicated right turn lane without seeing the plaintiff.  The defendant had the
right of way and Bauman J. concluded he took reasonable care when he signalled,
checked his mirrors and proceeded at a moderate pace.  In these circumstances,
he found Hadden was "… a case of the defendant driving
appropriately as he made a right hand turn through a crosswalk, only to be
suddenly blindsided by the plaintiff".  In consequence, he held the
plaintiff was 100% at fault for the collision.

[66]        
Where more than one proximate cause of a collision is established
liability will be apportioned.  The Negligence Act, R.S.B.C. 1996,
c. 333, s. 1(1) requires that apportionment of liability be made
based on the degree to which each person was at fault.  The required assessment
focuses on degrees of fault, or blameworthiness, not on degrees of causation. 
The court must gauge the amount by which each proximate causative agent fell
short of the standard of care required of that person in all of the circumstances:
 Cempel v. Harrison Hot Springs Hotel Ltd., (1997) 43 B.C.L.R. (3d) 219
(BCCA); Karran v. Anderson, 2009 BCSC 1105.

DISCUSSION

[67]        
Counsel for Mr. Nelson submits that professional drivers of heavy
commercial vehicles should be held to a higher standard of care than drivers of
more ordinary vehicles or cyclists.  This is so, he says, because accidents that
involve heavy commercial vehicles often result in great damage to persons and
property.  For this reason, the public is entitled to expect that huge trucks
will be operated with extreme caution and vigilance by well-trained drivers.  Understood
in that context, the standard of care to be applied to Mr. Conarroe in
this case is that of a reasonably prudent commercial truck driver.  The standard
of care to be applied to Mr. Nelson is that of a reasonably competent
cyclist.

[68]        
According to his counsel, Mr. Nelson conducted himself throughout
in the manner of a reasonably competent cyclist and thus bears no
responsibility for the Accident.  He cycled through the Intersection on a green
light in what was, for him, a through lane, taking into account the ample room
available between the lane line and parked cars on both sides.  In so doing, he
rode as near as practicable to the right side of the highway as required by
s. 183(1)(c) of the Act.

[69]        
Counsel submits that but for Mr. Conarroe’s negligence in failing
to see Mr. Nelson before and as he turned right at an unsafe speed Mr. Nelson
would have made it through the Intersection without incident.  The fact that he
did not was the result of Mr. Conarroe’s obvious inattention as Mr. Nelson
cycled along behind, then beside, the Truck and entered the Intersection, all
in a through lane.  In contrast, counsel for the defendants submits that Mr. Nelson
is the author of his own misfortune and Mr. Conarroe is blameless in
connection with the Accident.  Mr. Nelson was in the servient position and
in breach of s. 158 of the Act as he passed the Truck on the right. 
In support of this submission, counsel argues the curb lane on Hastings was not
a through lane, as asserted by Mr. Nelson.  Rather, he says, Mr. Nelson
was cycling between lanes, as prohibited by MacLaren.

[70]        
Counsel for the defendants also submits that, in any event, it was patently
unsafe for Mr. Nelson to attempt to overtake a right-turning truck on its
right side at a busy intersection.  This is particularly so given that he was
cycling in the Truck’s blind spot and left no margin for error in attempting to
get through.

[71]        
Counsel goes on to emphasize that Mr. Conarroe had the right of way
as he turned right at the Intersection.  He signalled his intention to turn in
advance and he proceeded cautiously when turning right, all of which was
entirely proper.  Unfortunately, Mr. Conarroe did not see Mr. Nelson overtaking
him on the right because Mr. Nelson was located in the Truck’s blind spot.

[72]        
According to his counsel, Mr. Conarroe could not have anticipated that
a cyclist would try to overtake him on the right in the prevailing circumstances.
Nor could he, with reasonable skill, have taken steps to avoid the Accident
once he became aware of Mr. Nelson’s disregard of his right-of-way.  For
all of these reasons, counsel for the defendants submits that Mr. Nelson
is the only party at fault for the Accident.  That being so, he says the action
should be dismissed.

[73]        
There is merit in aspects of both submissions.

[74]        
Mr. Conarroe plainly owed a duty of care to Mr. Nelson and all
other users of the roadway.  There was a sufficiently close relationship
between them that it was reasonably foreseeable carelessness on his part could
cause harm to Mr. Nelson.

[75]        
The standard of care applicable to Mr. Conarroe was that of a
reasonably prudent commercial truck driver having regard to all of the
circumstances.  In my view such a driver was obliged to exercise great caution
when approaching, preparing for and executing a right turn on a green light at
the Intersection, even if he was in the dominant position.  In particular, such
a driver was obliged to maintain a consistently high level of attention and
vigilance throughout the entire period of approach, preparation and execution
of the right turn in question.  This is so because of the predictable presence
of, amongst others, cyclists travelling in the adjacent curb lane, the Truck’s
many blind spots and the gravity of potential harm associated with a collision. 
In such circumstances, the possibility of danger emerging from the right was
real and apparent.

[76]        
The standard of care applicable to Mr. Nelson was that of a
reasonably competent cyclist.  In my view such a cyclist would pay close
attention to the size, speed and possible course of travel of all vehicles in
his or her immediate orbit.  In particular, such a cyclist would not attempt to
pass a large, slow-moving, right-turning truck on the right at the Intersection,
even if the curb lane was, for cyclists, a through lane and the light was green
ahead.  This is so because such an attempt would be dangerous and leave little,
if any, margin for error, with potentially devastating consequences.  Put
another way, such a movement could not be made safely and thus would amount to
a breach of s. 158(2)(a) of the Act.

[77]        
I agree with counsel for the defendants that Mr. Conarroe was the
dominant driver in the circumstances of this Accident.  He was proceeding on a
green light in the appropriate lane and had signaled his right turn well in
advance.  He had also looked around as he turned onto Nanaimo and, generally
speaking, was entitled to assume that others would obey the rules of the road. 
Nevertheless, the presence of cyclists in the adjacent curb lane was both proper
and predictable.  In addition, I have found Mr. Conarroe could and should
have kept a more vigilant look-out in the period leading up to the right turn
to ensure that it could be safely made.

[78]        
Had Mr. Conarroe kept a more vigilant look-out after he stopped for
the red light on Hastings and before he started his right turn he would have
observed Mr. Nelson cycling hard and fast in the curb lane behind or
beside him.  It would have been apparent that Mr. Nelson was focusing
straight ahead and might attempt to overtake on the right as the two approached
the green light, despite the riskiness of such conduct.  Armed with this
knowledge, Mr. Conarroe could have avoided the Accident by waiting to
commence his turn in the Intersection until it was clear either that Mr. Nelson
had abandoned the unfolding attempt to pass on the right or completed it
successfully.  His failure to do so was a failure to take reasonable care and a
contributing cause of the Accident.

[79]        
Mr. Nelson also failed to take reasonable care for his own safety,
which failure was a contributing cause of the Accident.  Although, based on Jang,
I find that the curb lane was a through lane for cyclists I also find it was
unsafe for him to attempt to pass the right-turning Truck when there was
little, if any, margin for error associated with such an attempt.  As noted,
this was a breach of s. 158(2)(a) of the Act.  It also fell well
below the standard of care to be expected of a reasonably competent cyclist in
all of the circumstances.

[80]        
Mr. Nelson suffered serious harm and damage as a result of the
Accident.  The damage has two proximate causes:  the negligence of both
parties.  In these circumstances, liability must be apportioned between the
two.

[81]        
In assessing the respective fault and blameworthiness of the parties I
must evaluate the extent or degree to which each departed from the standard of
care owed under the circumstances.

[82]        
In balancing blameworthiness, I find Mr. Nelson’s conduct
constituted a significant departure from the requisite standard of care which
created a risk of serious harm.  He was aware of the Truck travelling eastbound
on his left but focused only on his own path forward and did not check for an
activated right turn signal, which was there to be seen.  Instead, he tried to
pass the Truck on the right without first determining whether such a movement
could be made safely.  In my view, such conduct was very careless.

[83]        
Mr. Conarroe’s conduct also constituted a significant departure
from the requisite standard of care, taking into account the vigilance
reasonably to be expected of a professional truck driver.  He waited far too
long to look carefully and thoroughly around himself as he prepared to turn
right.  This is particularly true given his knowledge of the Truck’s many blind
spots.  In consequence, Mr. Conarroe was unaware of the fact that Mr. Nelson
was cycling hard and fast in the adjacent curb lane after the light changed
colour at the Intersection.  This failure was not momentary or minor, and it
carried the risk of foreseeable harm of considerable magnitude.  In my view,
however, it was not of the same degree as Mr. Nelson’s failure to take
reasonable care for his own safety in attempting to pass a right-turning Truck
on the right.

[84]        
In all of the circumstances, I conclude that 65% of the fault for the
Accident should be borne by Mr. Nelson and 35% should be borne by Mr. Conarroe.

"DICKSON J."