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Behragam v Paviglianiti: Bicyclist Not at Fault for Vancouver Intersection Accident


There is a popular misconception–really, a dangerous urban myth–that motor vehicles always have the right-of-way over bicycles. Such thinking obviously stems from the fact that motorists vastly outnumber cyclists, even in bicycle-friendly places like Vancouver. Still, such thinking is wrong. B.C. law does not give drivers of cars and trucks special rights on the public highways. Everyone who operates a vehicle, whether it has two or four wheels, must obey the same rules of the road.

A recent decision by a B.C. Supreme Court justice, Behragam v Paviglianiti, illustrates how the law actually works in this area. The plaintiff in this case was riding his bicycle when it collided with a motor vehicle owned by the defendant. Both sides essentially blamed the other for causing the accident. The judge ended up siding with the bicyclist’s interpretation of events.

So what did happen? The accident took place around 10:45 a.m. on September 23, 2013, at a traffic circle located at the intersection of West 10th Avenue and Birch Street in Vancouver. The plaintiff was riding his bicycle westbound on West 10th Avenue, which has a dedicated bicycle lane. The plaintiff entered the traffic circle and passed the west side of the centre intersection before colliding with the left door of the defendant’s Ford pickup truck. The impact knocked the plaintiff off his bicycle and caused him to lose consciousnesses for approximately 10 to 15 minutes.

The plaintiff subsequently sued the defendant in B.C. Supreme Court. A trial was held solely on the issue of liability–i.e., who was responsible for the accident–before Justice Emily Burke in November 2018 and February 2019. At trial, the plaintiff argued that at the time of the collision he was considered the “dominant driver” under B.C. law and therefore had the right of way. Conversely, the defendant maintained he was actually the dominant driver and had the right of way.

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Who Entered the Intersection First?

Under B.C. law–specifically Section 173(1) of the Motor Vehicle Act–when two vehicles, of any type, approach an intersection at “approximately the same time” and “there are no yield signs,” then the vehicle coming from the right is normally the dominant driver. However, this is only a general rule. As Justice Burke explained, B.C. courts do recognize an exception when the other vehicle–i.e., the one approaching from the left–has “reached the intersecting street substantially ahead of the one having the right of way.” Put another way, the driver approaching from the right “cannot exercise a right of way with impunity when there is a danger of colliding with another vehicle in the intersection.”

In this case, the defendant was the driver approaching from the right. So he would normally be considered the dominant driver. The burden of proof was therefore on the plaintiff to show he had “already made a reasonable and substantial entry into the intersection.”

According to the plaintiff’s trial testimony, he did not see any cars, bicycles, or pedestrians in the vicinity of the traffic circle as he began to enter. It was not until he was in the intersection that the defendant’s truck appeared “all of a sudden.” The plaintiff estimated the defendant was travelling at between 40 and 50 km/hr. The plaintiff said he “tried to brake and swerve left” to avoid a collision, but he was unsuccessful.

The defendant, not surprisingly, offered a different account. He maintained that he “did not observe any westbound traffic” before entering the traffic circle. Contrary to the plaintiff’s estimate, the defendant said he was not travelling at more than 5 km/hr. The defendant said he never saw the collision with the plaintiff. Rather, as the defendant approached a raised median in the intersection, he “felt and saw a ‘dark’ impact just beside his head.” The defendant said he immediately “slammed on his brakes and came to a stop.” He then exited his truck and saw the plaintiff lying on the ground and called 911.

The court also heard testimony from a police officer who responded to the accident scene, as well as expert witnesses retained by each side. The officer’s report helped confirm the exact location of the collision. Assuming the traffic circle was oriented at 12:00 to the south and 6:00 to the north, the impact occurred at the 4:00 position. The plaintiff’s expert witness also visited the intersection and used that information, together with the established position of the impact, to calculate the likely position of the bicycle and the pickup truck just prior to the collision.

From this evidence, Justice Burke concluded the plaintiff was “past the halfway mark in the intersection,” while the defendant was near the “commencement of the intersection,” i.e., he was still on Birch Street. The judge added it was also “more than likely” that the defendant was travelling at a speed greater than 5 km/hr, as he testified, although probably not as fast as the plaintiff maintained. Based on the reports of the police officer and the plaintiff’s expert, the judge surmised the defendant’s actual speed was closer to 15 or 20 km/hr.

Finally, it should be noted the court largely disregarded the report offered by the defence’s expert, as he did not visit the scene personally, and his testimony was offered primarily to establish a different, broader definition of what constituted the “intersection,” which Justice Burke pointed out contradicted the Motor Vehicle Act.

Call Preszler Injury Lawyers if You Have Been Seriously Injured in a Vancouver Bicycle Accident

If you are seriously injured in a bicycle accident, you may not be able to perfectly recall all of the details of what happened, as was the case with the plaintiff above. That is why it is imperative to contact an experienced Vancouver personal injury lawyer as soon as possible who can help you reconstruct the events leading up to your crash. Call Preszler Injury Lawyers to schedule a free consultation with one of our bicycle accident lawyers today.

Source:

https://www.canlii.org/en/bc/bcsc/doc/2019/2019bcsc818/2019bcsc818.html

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