British Columbia
Cycling Coalition
last modified July 3, 2003
The General Law of Negligence
Cycling and the Law - Article #2
by David Hay
The law as it applies to cyclists comes from two sources, statutory law or legislation set out in the Motor Vehicle
Act, and judge-made law, or the cases which sometimes, but not always, involve interpretation of the legislation.
One seldom finds principles of law contained in legislation. Legislation is generally produced by the government
of the day and simply represents the rules by which we have chosen to govern ourselves. The general principles
of law are not contained in legislation but, in a common law jurisdiction, stem from the decisions themselves.
Tort law pertains to civil wrong doing. Negligence is a separate category of tort law. The modern law of negligence
can be traced to a 1932 House of Lords decision, Donoghue v. Stevenson. Lord Atkins' formulation of the duty of
care in Donoghue v. Stevenson is considered the greatest case in modern jurisprudence relating to negligence:
"There must be, and is, some general conception of relations which gives rise to a duty of care, of which
the particular cases found in the books are but instances... the rule that you are to love your neighbour becomes
in law you must not injure your neighbour; and a lawyers question, who is my neighbour? receives a restricted reply."
The 80 page judgment is often distilled into a few sentences:
"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely
to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely
and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I
am directing my mind to the acts or omissions which are called in question."
The facts of this case did not involve a cyclist but a woman who claimed to have found a partly decomposed snail
in her bottle of ginger beer. Even prior to Donoghue v. Stevenson there was a recognized duty of care between motorists
and pedestrians or cyclists. Moreover, it is obvious that drivers are required to take reasonable care to avoid
acts or omissions which they can reasonably foresee would be likely to injure a cyclist. Welcome to the neighbourhood.
If a driver is in breach of one of the provisions of the Motor Vehicle Act, that breach is not determinative of
the question of negligence, but may be evidence of negligence. For damages to be awarded, however, that negligence
must have caused or contributed to the loss. For example, if a driver fails to signal a left turn, that is a breach
of the Motor Vehicle Act, and is probably negligent, but if the cyclist's view of the vehicle was obstructed before
the left turn was commenced then, strictly speaking, it may have had nothing to do with the accident, though positive
negligence may be found in other areas.
I have produced a television documentary on the law of negligence. It tells the story of Donoghue v. Stevenson.
It has been shown on Knowledge Network and Access Alberta and has been distributed to law schools throughout the
world. It is next scheduled to be shown on June 28th, 2001 at 10:00 pm on the Knowledge Network. The BC Cycling
Coalition has a copy available for viewing.
David Hay is a litigation lawyer and partner at Richards Buell Sutton LLP. RBS is a full-service law firm in Vancouver delivering legal advice and solutions in all areas of practice. The information above is not legal advice. Anyone seeking legal advice should contact David directly.
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