Municipality and Cyclist share liability in a Biking Accident

Posted by Injury Lawyers of Ontario on July 25, 2017

Frequently in the news are reports of cycling accidents as well as warnings on the dangers of cycling, particularly in large cities, such as Toronto and Hamilton.  However, biking on rural roads in Ontario carries as much, if not a greater risk, than biking in urban areas.  In any of these environments, there is potential for a cyclist to be struck when drivers turn left or right without first monitoring for cyclists, when drivers are inattentive or distracted, or when vehicles pass too close to a cyclist. 

Driver error or negligence is the cause of many cycling accidents, and in such cases, the accident victim is entitled to seek damages from the person responsible for their injury.  Accident reports reveal that cyclists also sometimes contribute to their own injury, through such actions as inattention and excessive speed, but even in these instances, the injured cyclist and driver may share liability for the cyclist’s injuries. In such events, the injured cyclist may receive damages in a proportion that reflects the driver’s share of responsibility for the accident. 

In addition to other drivers and cyclists themselves, another cause of cycling accidents involves unsafe pathways or roads, in public areas such as municipal roads and parks, or in private parks and facilities.  Under the Occupiers’ Liability Act, an occupier or owner of a property has a responsibility to keep anyone coming onto the property reasonably safe from harm. When someone is injured due to an unsafe condition, then the occupier may be found negligent in causing their injuries.

A lawsuit arose after a man sustained catastrophic injuries while cycling on a public recreational trail that runs alongside the Grand River in the City of Brantford.  The injured man was a 64-year-old Brantford resident and an experienced cyclist who rode several times weekly, and was very familiar with the trail.  On the day of the accident, he encountered another cyclist coming from the opposite direction and allegedly tried to slow down and take evasive action but lost control of the bike, falling sideways face first onto the rubble at the side of the trail.  The plaintiff’s helmet was broken and he sustained injuries to his head and spinal cord, and was rendered a quadriplegic.

In the trial, Herbert v. Brantford (City), the court was required to decide if the Municipality acted with reckless disregard in terms of their design, construction and maintenance of the trail and thus, breached their duty to the plaintiff pursuant to the Occupiers’ Liability Act.  Prior to the trial, the parties agreed to an amount of damages payable, in the event that the City is found to have contributed to the plaintiff’s injury; however, in such a case, the court must also decide whether the plaintiff was contributorily liable.  Among the evidence presented to the court, was the testimony from the plaintiff and several witnesses to the accident

Was there ‘reckless disregard’ on the part of the City?

Justice Whitten referred to Cormack v. Mara (Township), where the Court of Appeal found that under s. 4 of the Occupiers’ Liability Act, the occupier of a premises has a very limited duty of care to a snowmobiler who is deemed to have accepted all the risks of the premises.  To act with reckless disregard means “doing or omitting to do something which he or she should recognize as likely to cause damage or injury to the [person] present on his or her premises, not caring whether such damage or injury results”.  The Court imposes a lesser duty of care on the occupiers of recreational trails made available for recreational activities. The idea behind this is that the ‘public benefit’ justifies holding occupiers of these premises to a more limited standard of care.  

With respect to the trail where the accident occurred, there were many safety features on the portion of the trail upstream from the Lorne Bridge, but evidence revealed that the trail downstream from the Bridge where the plaintiff fell was “problematic”. The City clearly recognized that there was a potential danger of collision between cyclists at this location, as there was signage on both sides of the Bridge to warn trail users.  The City was also aware that, if possible, a clear/recovery zone should be constructed on both sides of the trail. This zone was installed upstream, but it was physically impossible to construct such a zone on the downstream portion due to the confines created by a railway retaining wall and the river shoreline on the two sides of the trail.  The Municipality had been warned by the G.R.C.A. that the downstream section and under the bridge requires seasonal maintenance due to annual flooding and winter effects.  Accordingly, the City had initiated a regular system of inspection.

Justice Whitton asserted that because the downstream portion of the trail was inherently dangerous, particularly due to the rocks and rubble that composed the shoulder on the river side, at the very least, the trail surface in that section should be as perfect as possible to not contribute to the danger presented by the absence of a clear/recovery zone.  Yet, there was evidence presented at the trial that the spalling on the pathway was uneven and a 'deficiency', and would contribute to a cyclist not being able to return to the trail.  There was no explanation given by the City staff member why the spalling was unreported during inspection of the trial.  The spalling was particularly dangerous at the location of the accident, because a cycling would have just picked up speed descending down the slope and may also intend to facilitate having to ascend the slope on the other side.  However, speed would diminish their ability to react to the spalling. 

Justice Whitten concluded that the failure of the inspection process to identify and deal with the spalling in such a hazardous location, given the lack of recovery zone, constituted ‘reckless disregard’.  Further, the judge found that this ‘reckless disregard’ at the location of the accident substantially contributed to the injury sustained by the plaintiff, and the judge asserted that “it may not have been the only cause, but it was a contributing cause”, to the extent that one can conclude that ‘but for’ the reckless disregard, the injury would not have happened.

Contributory negligence of the plaintiff.

Within the context of the Occupiers’ Liability Act and as recognized in case law, a recreational trail user, such as a cyclist, is assumed to accept the risks inherent in the activity.  Plaintiff’s in premises liability cases must take reasonable steps for their own safety.

The plaintiff was both an experienced cyclist and very familiar with the Trail and conditions of the Trail.  He was aware that there was always a risk of encountering other trail users, and it was his duty to maintain a proper lookout, maintain proper control of his bicycle, and alert others of his presence or effectively alter his cycling actions to avoid accidents.   Justice Whitten concluded that the plaintiff made a serious lapse in judgement in his chosen course of action when he encountered a cyclist coming towards him and encroaching on ‘his’ side of the trail.  Based on all the evidence, the judge concluded that the plaintiff was driving at an excessive speed; he did not use a bell or call out to warn the other cyclist of his presence; and the use of rat traps on his bike on a trail portion that allowed no room for error also likely contributed to the extent of his injuries when he crashed.

Despite the plaintiff’s recollection to the contrary, Justice Whitten asserted that the evidence supported that he was speeding and this reduced his reaction time when he saw the other cyclist. It was concluded that the combination of speed and the trail condition contributed to his loss of balance and caused the crash. The judge found the plaintiff 60 per cent at fault and contributorily negligent for his injuries. Due to its reckless disregard, the City was found 40 per cent liable for the plaintiff’s injuries and damages.

Biking accidents can have devastating consequences for a cyclist, as a rider is entirely vulnerable and has no protection when he/she strikes the pavement, a motor vehicle, or any other object.  If you or a loved one were injured in a biking accident caused by a negligent party, call an Ontario biking accident lawyer to get expert advice on the strength of your case and best legal options for obtaining deserved compensation.



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