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First Draft: Conference Program has been released!

On October 25th-27th we will be hosting 50 cycling advocates and professionals from across British Columbia in Burnaby, BC.

We are happy to be able to finally release the first draft of the 2013 Annual Conference Program.

As the saying goes, better late than never!

We still have space for project or policy based workshops on Sunday. If you or your organization is interested in hosting a session please contact the Kevin Chan, kevin.chan@bccc.bc.ca.

There is still time to learn more or to register. BCCC members or board members/staff of BCCC member/chapter organizations can receive a discount on their registration by using the promo code “member13″.

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Uninsured Motorists – The Bane of Cyclists Everywhere

Many motorists choose to carry the minimum liability insurance coverage. This is to save money, though the difference between minimum and maximum Third Party Liability coverage is often less than $100.00 annually. In British Columbia the minimum liability coverage is $200,000.00. However, in some jurisdictions in the United States, for example California, a driver can insure a car with a policy that provides only $15,000.00 for compensation for each person the driver injures.

 

As a cyclist, staying away from underinsured motorists on the road is a crap shoot. Fortunately, in British Columbia anyone with a drivers license, owner’s certificate for a vehicle, or anyone living in a household of such a person, is entitled to $1 million in underinsured motorist protection (“UMP”). However, UMP is considered a fund of last resort and only available to injured cyclists if they have exhausted private insurance, CPP benefits, EI benefits and any other source of deductible funding.

The provision of mandatory UMP benefits to BC motorists discriminates against cyclists who do not have a drivers license, insure a car, or live in a household of someone who does. For cyclists to be treated equally mandatory benefits ought to be provided to all users of the roadway who are injured at the hands of negligent motorists. This is not the present scheme.

 

The unfairness is not abstract. If you are unlucky enough to be injured at the hands of a negligent motorist who also happens to be underinsured, and you do not meet one of the preconditions for mandatory UMP coverage, you may find yourself facing a situation where your damages far exceed the driver’s insurance coverage. Unless the driver has assets, the present scheme results in no recovery of losses, including significant future income loss and care costs.

 

It seems we have no social standard of what is adequate insurance protection. However, it does not follow that motorists and their insurers ought to escape responsibility for the arrangement of adequate coverage and at the same time create car oriented pre-conditions to protection against underinsurance. Rather than a scheme which insists on motorist oriented preconditions, simple residency in the jurisdiction ought to suffice. It must be remembered that it is not always a coincidence that drivers with inadequate coverage tend to be the most careless drivers driving the most unreliable and unsafe cars.

 

Many jurisdictions in the United States including California, Oregon and New York, allow drivers to carry even less coverage than in British Columbia. The social acquiescence in inadequate insurance coverage perpetuates the myth that driving is a fundamental right versus a luxury. The establishment of better minimum limits and the removal of impediments to UMP protection would represent two very civilized steps forward towards a better and more cycling oriented world.


David Hay is a litigation lawyer and partner at Richards Buell Sutton LLP. He has a special interest in bike injury law and can be contacted at 604.661.9250 or dhay@rbs.ca.

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Controlling Uncontrolled Intersections

In a recent decision involving a 7 year old cyclist, the Supreme Court of British Columbia considered the law relating to uncontrolled intersections.  The case was a re-trial of an action for damages sustained by the boy who alleged he was struck by the Defendant’s vehicle while proceeding through an uncontrolled intersection.

 

The case is a sad reminder that the issue of fault is not resolved by simply looking at who got to the intersection first.  Nor does the right of way analysis turn on “who hit whom”.  Instead, the test is the same as it has always been.  The driver on the left, whether that is a motorist or a cyclist, must yield the right of way to the driver on the right if they approach the intersection at approximately or so nearly at the same time that there would be an imminent hazard of collision if both continued on the same course at the same speed.

 

The injured cyclist argued that the obligation to yield the right of way fell on the driver who had been on the cyclist’s left has he approached the intersection.  Even if it could be said that the driver had arrived there first and the cyclist seconds later, that did not alter the basic proposition that the driver on the right has the right of way.  So said the cyclist.

While the Court accepted the cyclist’s analysis of the law, and accepted that the cyclist had been to the motorist’s right, the Court found that the accident did not occur in the intersection but occurred prior to the motorist reaching the intersection.  The Court found that the collision occurred after the cyclist had at one point cut the corner and essentially driven into the car before it had arrived at the intersection.  The rules and principles relating to the right of way at uncontrolled intersections were restated but, unfortunately, found not to apply to or benefit the cyclist, because the accident was found to have occurred outside of the intersection.

 

The take away for cyclists from this case is that the location of an accident is critical to any analysis of liability.  Cyclists who find themselves in this unfortunate situation would do well, if able, to do use whatever means at their disposal to determine where a collision occurred.  This may be a humorless task but a phone camera photo of the resting positions of the car and bicycle can go a long way to proving this factual issue.  Confirmation of accident location from independent witnesses, including the Police, is also very useful.

 

David Hay is a litigation lawyer and partner at Richards Buell Sutton, LLP.  He has special interest in bike injury law and can be contacted at 604.661.9250 or dhay@rbs.ca.

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BC Communities Lead in Cycling to Work

Congratulations! Several B.C. communities and regions are among the Canada and North American leaders in cycling to work.

 

According to the recently released 2011 Census results, Metro Victoria leads Canada with 5.9% of commuters cycling to work up from from 5.6% in 2006. In the City of Victoria, an impressive 10.6% of workers arrived by bike. Metro Kelowna came in second at 2.6% up from 2.1% in 2006.

 

Bicycle commuting in the City of Vancouver increased from 3.7% in 2006 to 4.4%. Vancouver remains number two in North America among cities with more than 500,000 people after Portland where 6.3% bike commute. There was also a significant increase in cycling commuting in North Vancouver with 2.2% of people cycling to work in 2011. In Metro Vancouver, the increase was from 1.7% to 1.8%, good enough to lead North American large metropolitan areas.

 

Overall, in British Columbia riding a bike to work was 2.1%m up from 2.0%. The results from Victoria, Kelowna and Vancouver show that people will cycle to work when governments invest in safe comfortable cycling facilities. The BCCC and our member organizations encourages the Province to working with municipalities to increase investments in cycling as recommended in our Cycling Strategy so that communities around B.C. can continue to increase the number of people cycling to work.

 

Census results for other cities in BC and Canada can be found at: http://www12.statcan.gc.ca/nhs-enm/2011/as-sa/fogs-spg/Pages/CSDSelector.cfm?lang=E&level=4#PR59

 

Results for other metropolitan areas can be found at:
http://www12.statcan.gc.ca/nhs-enm/2011/as-sa/fogs-spg/Pages/CMACASelector.cfm?lang=E&level=3#PR59

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Top 10 List of Do’s and Dont’s After a Crash

The things people do and say following a traffic accident are often given significant weight by a judge or jury during the trial process. Underlying the theory of evidence is the notion that the further one is from the event in issue, the more inherently unreliable is the recollection of that event, given the impact of anger and denial around the trauma itself, the tendency to reconstruct, and factors related to litigation around the event. However, witnesses I have come across over the course of ten years of practising law have seldom possessed the presence of mind following a serious trauma to take steps to protect their legal position related to that trauma. Let’s face it, the furthest thing from anyone’s mind following an accident on a bicycle is the possible impact of what they say or do on a lawsuit over the accident. With that caveat in mind, here is my top ten list of do’s and don’ts following an accident. This list is based on some of the difficulties I have seen people get in which might have been avoided if they simply had been a wee bit more mindful of the future implications of their conduct.

I preface this list by saying that if you have been involved as a cyclist in a serious traffic accident (and in my experience most accidents between cars and bicycles are relatively serious) there is very little if any anything you can do to improve your legal position and almost invariably, anything you say or do in an effort to explain what happened will be used against you. So don’t try.

The Do’s

Try to observe where you are immediately following an accident – make a mental note of where you are in relation to your bike, the car which struck you, and a reference point such as the painted lines of cross walk, a light standard, fire hydrant, corner, bus stop, etc.

Try to obtain as much information as you can relating to the identity of the driver, licence plate of the vehicle, and any witnesses to the accident – this is particularly important if the accident is a hit and run and the police do not attend. Get legal advice immediately as there is a positive obligation on you to attempt to ascertain the identity of the driver and owner of the vehicle.

If the ambulance attendants ask you to go to the hospital, go – you score no points for being stoic and from a medical point of view it is usually a good idea to take the time to get examined.

Control your temper and avoid belligerence or antagonistic behaviour – you may be understandably upset but restraint in these circumstances is of immense value – conversely, displays of anger only predispose witnesses, adjusters, and the ultimate triers of fact to not see things your way.

Talk to a lawyer prior to talking to ICBC – you are required at law to provide information to ICBC but you are not required to provide information directly to ICBC and there is seldom an upside.

The Don’ts

Do not apologize – we have a tendency to apologize to the person who stepped on our foot. Unfortunately, an apology is often interpreted later as an admission against interest even when, at the time it was made, it may have had nothing to do with who was at fault for the accident.

Do not discuss with the driver of the car or the witnesses what happened unless the driver is explaining to you how he/she was at fault for the accident – in that event, listen carefully and do not offer a statement such as ‘It’s ok, I think I am fine.’ Accident victims are often in a state of shock as a result of which they cannot experience the full extent of their injuries until sometime later.

Do not agree to settle the dispute privately. It may be that you can do this but wait until you have had a chance to fully consider what happened and the consequences.

Do not give or sign long winded or complicated statements surrounding the circumstances of the accident – you will likely be approached both by the police and ICBC – if it is not practical or reasonable to contact a lawyer prior to giving a statement, then keep it very short and concise to allow for further reflection: remember, your statement can seldom help you.

Do not pay a traffic ticket related to the accident simply because you have no time to file a dispute. The payment of a ticket, though not conclusive of your legal dispute with the driver, certainly indicates a guilty mind or a lack of confidence in one’s position and tends to impact on a case in negligence against the wrongful driver.


David Hay is a litigation lawyer and partner at Richards Buell Sutton LLP. He has a special interest in bike injury law and can be contacted at 604.661.9250 or dhay@rbs.ca.

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