The law of negligence involves accidental or unintentional careless conduct that results damage or injury to others or their property. In order to sue someone for negligence there must be four elements – which are critical for the plaintiff to have a successful negligence action. First, it is needed to be established that there was a duty of care that was owed to the plaintiff. Secondly, it needs to be shown that there was a breach of that duty or standard of care. Thirdly, there must be causation determined that the breach of duty of care directly caused the injury or damages. Fourthly, and last there must be damage because of the careless act and is this type of damage been recognized as compensable. There are several defences to a negligence case. It can be proven that the plaintiff had an assumption of risk; the defendant needs to prove that the plaintiff assumed the physical risks involved as well as the legal risks. Another defence is whether it can be proven by the defendant that the plaintiff was contributorily negligent. The last defence is the illegality defence, where it is shown that plaintiff was committing an illegal act that directly caused the damages.
Jim Davies, an avid cyclist who rode a bike for over six decades. He participated in various national and international cycling competitions. In his 70s, he has ridden over 10,000 kilometers annually. In October 15, 2011 he was 77 years old at the time, was riding on one of his routine routes in Richmond, BC with his son Gary Davies. They were riding on the bike lane in between the roadway which was to their left and with a parking lane to their right. They saw a truck with its sideview mirror extending out into the bike lane. Gary Davies made a remark about the truck’s mirror – he needed to speak in a loud voice in order for Jim to hear him, due to the fact that Jim Davies was partially deaf in one ear. Mr. Elston who was the owner of the truck was also in his front yard at the time. Subsequently to hearing the remark made about his truck mirrors, he proceeded to enter his 2011 Ford F350 to follow the father and son to confront them. When Mr. Elston caught up to the father and son, they reached a part of the Railway Avenue where there was no longer a parking lane to their right, the bike lane was six feet wide and was bordered by the roadway and a curb. From the cyclists perspective Mr. Elstons large truck appeared unexpectedly he pulled up in a close proximity of the cyclists, Mr. Elston had his passenger window rolled down. The truck was close enough for Jim Davies to extend his hand out to rest on the passenger window frame. Words were exchanged between the two parties as they were parallel to each other going down Railway Avenue. After the exchange which was around 10 seconds Mr. Elston proceeded to drive away, which then Jim Davies fell. It is not in dispute that the truck did not collide with Jim Davies, nor it is not in dispute whether that when Jim Davies fell – his hip had smashed into the curb resulting in extensive and long-term injuries to his right hip and pelvis. Mr. Elston does not accept responsibility for the accident, he claims even if he is responsible, he claims to be only partly responsible due to Jim Davies being contributorily negligent because he put his hand on the truck window frame when the truck was beside him and Gary Davies being partly negligent because they were riding abreast of each other in the bike lane.
- Did Kevin Elston negligently cause the accident?
- Was Jim Davies contributorily negligent?
- Was Gary Davies partly negligent?
- Is the defendant liable for the plaintiff’s subsequent fall?
- The Court concluded that but for Mr. Elstons’s aggressive and negligent conduct Jim Davies would not have fallen off his bike. Out of anger and irrationality Mr. Elston entered his vehicle to follow Jim and Gary Davies. He pulled up beside them within arms length, unexpectedly and in an unsafe manner, beginning to confront them in an aggressive manner. After the exchange, with Jim Davies hand still on the window frame of Mr. Elstons car, he without warning pulled away quickly causing Jim Davies to further lose his balance and fall off his bike. The four ingredients of a negligence action are present. A duty of care was established when Mr. Elston entered his vehicle, s 144(1) of Motor Vehicle Act which prohibits drivers from operating a vehicle on a highway without due care and attention or without reasonable care and attention for other persons using the highway. The breach of standard of care established through Mr. Elston pulling up to them in a dangerous and aggressive manner then without warning driving off while Jim Davies hand still on the truck. Mr. Elston did not conduct himself in such a way that a reasonable and prudent person would have given the circumstances. Causation was proven by but for Mr. Elstons decision to get into his car, then to pull up and drive off in an unsafe and aggressive manner, Mr Davies would not have fallen off his bike and sustained injuries. Damages resulting from the accident were his right hip and pelvis fractured and various other permanent injuries and lasting pains.
- Section 183(1) of the MVA provides that a person operating a cycle on a highway has the same rights and duties as a driver of a vehicle. The defendants argued according to section 183(1)(d) riding side by side on a roadway is prohibited, and if it wasn’t for the fact that they were riding abreast of each other – the accident wouldn’t have happened. The Judge concluded that the provisions cited were for specifically roadways which are classified as a portion of a highway that is “improved, designed or ordinarily used for vehicular traffic”: MVA, s. 119(1) and that Jim and Gary Davies were riding in a bike lane which is classified as a designated use lane reserved for cycle traffic. There are also no provisions prohibiting riding abreast in a bike lane. It is evident that they were not acting in ways contrary to the MVA, so there is no reason that riding abreast to each other was contributorily negligent.The defendants second argument with respects to the plea that Jim Davies was contributorily negligent is the fact that Jim Davies hand was on the truck. The judge accepted that Jim Davies acted in a way that was contrary to s. 183(5) of the MVA which was: “A person must not ride a cycle, skate board, roller skates, in-line roller skates, sled, play vehicle or other similar means of conveyance when it is attached by the arm and hand of the rider or otherwise to a vehicle on a highway.” But then the judge also accepted the fact that Jim Davies placing his hand on the vehicle served as a way to keep a safe distance away from the truck and as a means of stability. Also Mr. Elston stated that he was aware that Jim Davies hand was on his truck, obliging him to show a reasonable standard of care in those circumstances. Mr. Elstons actions showed that he did not, thus concluding that Jim Davies was acting in a way to protect himself and is not contributorily negligent with respects to placing his hand on the truck.
- The defendants argued that Gary Davies was partly negligent due to the fact that he was riding abreast to his father, as well as the fact that he instigated and exacerbated the situation by using foul language. The Judge already rejected the notion that riding abreast was contributorily negligent, rendering the defence null and void. As for the foul language it is stated in the full case that the judge accepted Gary Davies evidence that he did not want to use foul language to further instigate the situation, because he recognized that him and his father were in a highly vulnerable situation. Thus, the Judge found that Gary Davies did not act in a way that was negligent contributing to the accident.
- After Jim Davies felt like he recovered from his injuries to a certain degree, he began to resume cycling again. On June 29, 2013 he fell off his bike again. He lost his footing from trying to accelerate after stopping on an incline – causing him to lose balance and fall. He sustained injuries to his left side of his body, fracturing his left hip, several ribs, and dislocating his shoulder. Jim Davies finds that he would not have fallen a second time if the first accident did not happen. The Judge found that Jim Davies made it his own choice to resume cycling again and that he owed himself a responsibility to take extra care due to his pre existing injuries. Thus finding Mr. Elston not liable for Jim Davies subsequent fall and injuries.