"Where there is a marked bike lane, the starting presumption should be that there may be a cyclist travelling in that lane, and a turn across a bike lane is only appropriate after a driver confirms that the lane is free and not occupied."
According to Justice Walkem of the Supreme Court of British Columbia in Steinebach v. Skittrell, this is the standard motorists should hold themselves to when turning across a bike lane.
I too was hit in a bike lane in the same way Dr. Steinebach was in this BC case. It's reassuring to hear Canadian courts echo how we hope motorists would conduct themselves around cycling infrastructure (and also just all the time).
Justice Walkem sought to make crystal clear her view:
"To draw an analogy, in the same way that safe firearms handling requires the assumption that a firearm is always loaded, safely turning across a dedicated bike lane requires an assumption that the bike lane is always occupied, until a set of checks confirms that a turn may be made safely."
In this case, the defendant driver checked her rear-view mirror before turning, but did not check her side mirror, or shoulder check her blind spot, prior to crossing into a marked bike lane. The cyclist who was proceeding down a hill in the bike lane could not stop in time when she crossed his path.
Dr. Steinebach, a veterinarian and avid cyclist, suffered a broken collar bone (requiring surgery), soft tissue injuries and a concussion/mild TBI not identified until later.
The driver was issued a failure to yield ticket and paid a fine. Her insurer was on the hook for Dr. Steinebach’s damages. As if we needed another reason to for Ontario to pass the Vulnerable Road User Act, Justice Walkem stated:
“Though cyclists have the same rights and duties as the driver of a motor vehicle (per the MVA s. 183(1)), it would be a mistake to overlook the particular vulnerability of cyclists. The simple fact is that cyclists are considerably more physically vulnerable than motorists in vehicles. An accident that could result in an easily fixable dent in a vehicle could result in broken bones or other catastrophic and lasting injuries for a cyclist. Cyclists’ vulnerability warrants an ongoing situational awareness and corresponding vigilance on the part of motorists who share roadways.”
Along with new laws and penalties we need ongoing and robust driver education that prioritizes the safety of vulnerable road users. It is imperative that motorists in Ontario see driving as a privilege and not a right. I broke my elbow and wrist in the same collision as Dr. Steinbach’s in BC. Collisions and injuries like this are common. Sadly, we see them frequently.
It’s our hope that decisions like this will continue to awaken a need for caution and care when driving.
That being said, though many positives for cyclists can be gleaned from this decision, the age old concept of contributory negligence was applied by Justice Walkem and the cyclist found 15% liable for this crash.
In Ontario, unlike BC, the onus of disproving liability is first on the driver. The Highway Traffic Act Reverse Onus provision establishes a presumption of guilt on a driver who hits a cyclist or pedestrian. Frequently, though Ontario courts like the Supreme Court of British Columbia, apportion some blame to cyclists involved in collisions and reduce their compensation by that percentage. To that end, Justice Walkem stated:
"I am also satisfied that the Plaintiff bears some responsibility, given his own observations about the unusually busy traffic at the Intersection, and the fact that three driveways occurred in quick succession between the Intersection and scene of the Accident. I find a reasonable and situationally aware cyclist in those circumstance ought to have slowed and exercised caution when passing on the right of slowed vehicles."
The judge considered that before the fateful right hook across the bike lane that injured the cyclist, the defendant driver had cut the cyclist off at the previous intersection. The cyclist was angered by this and watched her as she drove on but maintained his speed and presumption that it would not happen again. He collided with her at the second intersection at 47km/h.
The cyclist's Strava/Zwift data was used against him by the defence!
Nevertheless, we always pursue an aggressive fight against contributory negligence allegations, but cyclists must be aware of what they are up against. Ride safe, ride defensively, and assume they are going to hit you.
We are specialists in cycling law, contact us if you’ve been involved in a crash: info@thebikinglawyer.ca and 800-725-0754.
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