Carfra Lawton LLP | Victoria BC

Court of Appeal rules cyclist passing on the right at fault for accident

In Ormiston v Insurance Corporation of British Columbia 2014 BCCA 276 the plaintiff cyclist was injured near the bottom of a steep hill on a two-lane paved rural road in an accident with a motor vehicle driven by an unidentified motorist. The road was marked with a centre line and a fog line on the right hand side. A paved shoulder extended past the fog line. The vehicle had passed the cyclist before the accident. The vehicle slowed to the point of being almost stopped. The plaintiff thought he could quickly pass the vehicle on the right side. At the same time, the vehicle abruptly moved to right over the fog line. The vehicle caused the cyclist to travel across the shoulder and over a concrete barrier. At trial, the court apportioned liability 70/30 in favour of the plaintiff cyclist.

The majority of the court of appeal overturned the finding of negligence against the defendant driver, two to one. The majority found there was no evidence that the vehicle driver would have reasonably expected the plaintiff to be put at risk by the manoeuvre he made. The plaintiff was wholly at fault for passing the vehicle on the right. The court held that the shoulder did not constitute a separate lane which permitted the cyclist to pass a vehicle on the right.

In dissent, Mr. Justice Willcock agreed with the trial Judge for difference reasons. The Motor Vehicle Act permits cyclists to pass vehicles on the right when riding on a paved portion of the highway in a lane marked by a fog line. Drivers of vehicles should expect cyclists on the shoulder of the highway and they cannot turn onto the shoulder without exercising appropriate care. Here, the vehicle driver turned onto the shoulder when the cyclist was there to be seen, and in the dissenting opinion the vehicle driver would have been responsible for a significant apportionment of liability.

Mr. Ormiston’s application to appeal to the Supreme Court of Canada is pending a hearing date.

Case summary by: Chelsea Lott