Was the Cyclist at Fault? Not Necessarily…

A great question found in the helpful pages of the Toronto Star’s Wheels section this past weekend:

Who is responsible for the accident when a left-turning vehicle at a lighted
intersection hits a cyclist proceeding in the opposite direction on the green?

Contrary to some other opinions expressed, my view is that liability for this accident is not clear cut.

Keep in mind that there is a significant difference between the function of a police officer attending at the scene of a motor vehicle accident and the eventual determination of liability in a civil lawsuit (i.e. if the bicyclist commences a civil lawsuit for injuries arising from an accident).  The police officer is attending in the midst of ongoing traffic concerns and medical emergency concerns.  The police officer is responsible for controlling the accident scene.  That is a lot of responsibility and the circumstances under which the police officer is working is very often trying.

In a civil lawsuit which might take 3 or 4 years to prosecute, the issue of liability is reviewed intensely and every aspect of the accident is picked apart by the lawyers involved.

The question for the driver in this case in a civil lawsuit: why did not you see the cyclist?

Remember that the driver here has the onus of proving that s/he was driving properly per s.193 of Ontario’s Highway Traffic Act.

Remember that the driver also has a duty to turn left in safety, not only pursuant to s.142(1) of the Highway Traffic Act, per Sgt. Perks but also s.144(8) of the Highway Traffic Act.  The question of Mr. Yeh riding ‘lawfully’ on the edge of the crosswalk here is fully up for debate.  The police officer at the scene made a quick decision but that is not, respectfully, necessarily the last word on the topic.

Drivers are expected to know that cyclists will be on the road.  For example, s.165 of the Highway Traffic Act requires vehicle occupants to look before they open their door while on a roadway (including for passing cyclists).

Finally, by analogy, remember that the Fault Determination Rules under Regulation 668/90 of the Insurance Act sets out common accident scenarios and then determine fault for accidents between automobiles.  Of course, a bicyclist is not an automobile, but s.13 of theFault Determination Rules clearly set out the responsibilities of a driver in a lighted intersection.

Gregory Chang
Toronto Insurance Litigation Lawyer