Cycling Accidents - Riding Defensively:  Are Cyclists Allowed to Pass on the Right?

Under the rules of the road, cyclists are treated the same as motorists and are required to obey the same rules of the road as motorists.  They also though are required under the provisions of the Motor Vehicle Act to ride as far to the right of the road as possible.  Accidents frequently occur between motorists and cyclists when a cyclist “passes” a car on the right.  That car then not seeing the cyclist either executes a right hand turn or in some other way impedes the path of travel of the bicycle.  As a cyclist myself I often see this situation evolve.  As I am riding as far to the right as possible, a motorist for one reason or another comes to a stop.  Am I then required to stop as well to avoid passing him on the right?

A recent decision from our Court of Appeal found a cyclist 100% at fault for an accident that occurred when a cyclist passed a stopped vehicle on the right.  The Court of Appeal decision involved the decision of three judges.  Two of them found the cyclist at fault for the accident and the third disagreed, finding that the cyclist was required to ride off the roadway, to the right side of the highway.  The facts in that case involved a van that passed a cyclist as they were travelling down a hill.  When the van reached the bottom of the hill it slowed.  The cyclist also slowed but then determined that he could accelerate and move past the van.  When the cyclist was at approximately the rear passenger door of the van, the van abruptly moved to the right and then drove on.  There was no contact with the cyclist but the movement resulted in the cyclist having to take evasive measures and ultimately going off the road and suffering injury.  The trial judge found the van driver 70 percent at fault for driving without due care and attention and the cyclist 30 percent at fault for passing on the right.  ICBC appealed the decision.

On appeal, the two judges who decided that the cyclist was 100% at fault for the accident found that for the actions of the driver to constitute driving without reasonable consideration for others, the driver would have to have reasonably expected some other person, in particular the plaintiff, to have been put at risk by the action taken.  The court commented that the cyclist did a foolish thing in deciding to pass on the right, noting that if he had waited even a few seconds there would have been no accident.  They found that the plaintiff was the sole author of his misfortunate and held that there was no basis in law to hold the driver of the vehicle liable in negligence.

I disagree with this decision. [emphasis added]  The van driver had passed the cyclist seconds prior to his moving over to the right and knew that the cyclist was there or should have checked to see where the cyclist was prior to moving to the right.  Section 158 of the Motor Vehicle Act describes the circumstances where passing on the right is permitted. It includes an allowance for passing on the right when on a “laned roadway” and there is one or more unobstructed lanes on the side of the roadway on which the motorist is permitted to drive.  Section 183(2) of the Motor Vehicle Act requires a cyclist to ride as far to the right of the highway as possible.  “Laned roadway” is defined in the Motor Vehicle Act as a part of the road that is divided into two or more lanes for the movement of vehicular traffic in the same direction.  An argument can be made that the portion of the highway to the right of the fog line constitutes a laned roadway for the movement of bicycles.  The motorist should have been aware of the existence of the cyclist to the right of him.  The bicycle should have been able to pass to the right of the motorist given the existence of the laned roadway and should have been able to do so safely.

This decision underscores two main things.  Litigation involving cycling accidents is fraught with difficulties.  If you are a cyclist that has been injured in a motor vehicle accident it is essential that you retain experienced trial counsel, counsel that is experienced in accidents involving bicycles and that is experienced as a cyclist and therefore understands how the rules of the road will apply in practice to cyclists.  Cyclists are often found at fault for accidents which clearly involve negligence on the part of the motorist and this is often in my view due to counsel not understanding what it is like to be a cyclist on the roads.  More importantly though, this case illustrates one of the many ways that cyclists can be injured on our roads.  As a cyclist, if you are involved in a collision with a vehicle, the outcome for you is not going to be good.  You are completely unprotected.  The consequences of the collision will be devastating.  Regardless of whether you have the right of way, always ride cautiously and ensure that you have been seen prior to executing any movement on your bike.  Stay safe out there by riding defensively.

Rose Keith, JD, Vancouver BC personal injury lawyer, and avid cyclist

© 2015 Rose Keith - published in www.bcpersonalinjury.org

see article on: Cyclist Helmets and Head Injury Protection
see also Rose's article on Motorbike Insurance in BC
read article “Survivors guide to ICBC: Understanding basic procedures, rights & obligations when dealing with ICBC”

B.C. Personal Injury Lawyers:  Vancouver BC & Victoria BC experienced with ICBC disputes.

The following childrens’s graphic is courtesy of children’s illustrator Cat Wong, in San Francisco, who has a web site for the characters in the picture ClaraAndClarenceBear.com We are pleased to use this as a way to promote children’s cycling health & safety.

see also Vancouver Medical Walk-In Clinics try directory Metrotown.info...healthservices if you don't have a family doctor and want some medical attention that does not require an immediate hospital emergency visit.

Photo credits
The photo of cyclist backlit by sun and holding her bike overhead was taken by Norberto Li, San Francisco dentist who is a helmet wearing cycling enthusiast who has also done restorative teeth surgery for patients suffering injury from bike and car accidents.  For more information go to his web site at www.bestsfdentist.com

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