CASE LAW - Ormiston v ICBC

BC Courts Coat of ArmsDixon Ormiston fell from his bicycle and sustained serious injury after being forced against a concrete abutment by a vehicle that veered into his path while he was passing it on the right side. Of interest in deciding the liability in this case is the examination of passing on the right, both by a vehicle driver and a cyclist. In general, passing on the right is forbidden in British Columbia and Mr. Ormiston was found to be 30% liable for this collision.


Reasons for Judgment - Ormiston v ICBC


Court of Appeal Result

This case was reviewed by the BC Court of Appeal and that has changed the outcome of the trial finding Ormiston completely at fault for the collision.

Read the new reasons for judgment from the Court of Appeal.

Read an analysis on BC Injury Law.

This is a weird bicycle case, in my opinion.

Weird, because of the lack of witnesses - including one of the apparent participants to the bicycle crash; the driver of the other vehicle, who remains unknown.

Weird, because it's not the type of vehicle/bicycle collision that you would expect to be most common; where a driver executes a right turn - into a driveway, laneway, or intersection - and thus crosses the path of the cyclist attempting to pass on the right.

With the exception of circumstances where there has been a separate bicycle lane created (so now we're into a different legal scenario) does case law exist from this type of collision?

In my opinion, every time a cyclist passes a vehicle on the right within the same lane, the maneuver is completely illegal and fault in the event of any collision should always be at least 75% against the cyclist.

Submitted by E-mail

Absolutely fascinating that ICBC (the defendant appealing the original apportionment of blame) would claim there was no negligence on the part of the van driver, who veered suddenly onto the shoulder.

When ICBC conducts a road test, a driver will be asked several times to pull over to the side of the road to perform various tasks such as parking. Each time, the driver is required to check and signal before moving over, no matter how quiet or narrow the street.  Failure to do so on multiple occasions will result in disqualification, even if everything else had been perfect.  Failure to do so just once with a cyclist or other road user even close to a position of conflict would result in disqualification for a "dangerous action."

Yet in the case in question, the van driver knows full well that he has passed a cyclist just a short time before, and that while he has been stopped on the highway, the cyclist could easily be closing the distance down the steep hill at a high rate of speed -- high for a cyclist at least.

Aside from the two judges (though not the original judge or the dissenting judge) not seeing this as neglecting to use a reasonable standard of care, we have ICBC lawyers basing their case by going completely against what is required in a road test.

I don't think any of the judges got it right ...

... but you cannot reasonably expect that lawyers acting on behalf of ICBC, representing their 'John Doe' Defendant, would be expected to present evidence based on the standards for conducting a Road Test for new BC drivers.  And by this, I mean both your 'typical' teenager seeking their Class 7 Novice license, or your experienced driver from another jurisdiction wishing for their Class 5 (or higher) license here.

Certainly, during a Road Test, the Examinee is expected to demonstrate effective observation skills that would be expected to reduce their risk of being involved in a collision - regardless of fault.  And regardless of law, too.  Neither mirror checks or shoulder checks are specifically required under law, although failure to use them may later be considered as contributory in the event of a collision.

And also, given the paucity of evidence provided in this case - who was John Doe?  Or was it Jane Doe (one of the judges referred to the driver as a female)?  And how do we know whether this driver of some kind of SUV of some blue/green colour made by some manufacturer or other - did, or did not, check their mirrors and/or make a shoulder check prior to suddenly moving over to the shoulder area?  How do we know that the vehicle and its occupant(s) ever even existed?  (I don't doubt it, based on the information in the case, but the only witness is the Plaintiff as far as I can tell.)

Not to seem unnecessarily combative here, because I honestly think you've presented a provocative and researched argument, but I have to take issue with a couple of other items.

Regarding ICBC Road Tests - I would not argue with you (nor would many Driving Instructors and even Driver Examiners quite frankly) that the stringent requirements for shoulder checks borders on the absurd.  And to the best of my knowledge, there's no legal requirement to signal right when pulling over to the curb on that side, but heck, this is actually a very good habit even if you don't think there's anyone around.  As for mirror checks, well they're unbelievably difficult for the DE to verify, particularly if they're paying attention to everything else that's going on; and being as Fail rates are typically around 50%, somebody qualified had better be aware of the situation!  Yeah, it's a robotic and seemingly stupid requirement for the Applicant to complete these processes, but for now it's the best they can come up with, and a genuine effort to set the same standard for everyone.

As to your statement that 'failure to do so on multiple occasions will result in disqualification, even if everything else had been perfect', I have no problem with that.  If a driver frequently and repeatedly demonstrates that their habit when pulling over to park at the curb is to simply do so arbitrarily, without attempting to verify that other road users are not present or won't be affected, then they don't deserve a Driver License.  That simple.  And while, theoretically, they would fail to qualify only because they didn't follow these procedures in quiet neighbourhoods - otherwise demonstrating perfection behind the wheel - is just that.  A theory.  Believe me, there will be other errors and lapses of judgment or observation; at a guess, you have a Road Text sheet from a completed test in front of you, and I would put money on it that other errors were marked and apparent.

As for your definition of a 'Dangerous Action' well sorry, but you're just plain wrong.  This 'instant failure' marking would only be applied in cases where another road user needed to take some type of evasive action as a consequence of the Applicant's incorrect behaviour, or the Driver Examiner needing to take control (verbal or physical).




Submitted by E-mail

 Consider an altered scenario in which the van driver's actions are identical in every way -- he almost stops near the centre line for a time, then veers suddenly, and apparently blindly, onto the shoulder.  But just then, rather than a cyclist, a jogger/runner is proceeding downhill along the shoulder.  (So no, the runner is not on the left side of the highway facing the traffic, but in our hypothetical scenario the other side of the highway happens to have no shoulder.)  And now the van, in veering to the right and onto the shoulder, bumps the runner to the right, where the runner strikes his head on the abutment and suffers grievous injury.

Would ICBC again contend that fault would lie completely with the runner? Would the judge again find that the runner, to quote from the reasons for judgment on the BC Injury Law page, was the "author of his own misfortune?"

Regarding the lack of negligence, the van driver would have passed the runner a short time earlier.  Is it not reasonable to expect the driver to anticipate that while he was stopped, the runner may have caught up? (It would have been likelier still that cyclist Ormiston would have caught up.)

ICBC, in its teaching materials and in road tests, requires a driver to check before pulling over to ascertain that this movement can be done safely. Yet in court they say the opposite.

That's a good argument ...

... but you still miss the point.

If ICBC - as represented by their lawyers - simply accepted liability for the injuries suffered by the cyclist, on the evidence provided, then the precedent set would be serious.  And not for ICBC, as a Public Utility (yeah I know that's not exactly the best description of that weird corporate entity, which is governed by the BCUC) because of potential costs to them - they're not officially a company attempting to generate profit for shareholders.

But their costs of doing business - including fighting claims, or paying for them when they lose - will be reflected in what we all pay for insurance.  Again, in theory.  But it's undeniable that they have a responsibility to control costs on behalf of their insurers, so they are bound to defend against claims like this on points of law and evidence, on behalf of the real shareholders - those of us who have to insure through them.

And seriously, you have to understand that the standards and expectations of ICBC Road Test standards are completely irrelevant and unrelated.  They exist for a different reason, and besides - not a shred of evidence has been presented that the vehicle and driver who supposedly caused this unfortunate cyclist to swerve into the roadside barrier and land in the ravine actually existed.

Submitted by E-mail

CompetentDrivingBC replied:  ... but you still miss the point.

Hardly.  In fact I'll bet it occurs to everyone reading about the case that there is a possibility there was no van.

Rather I've been making two points, based entirely on the facts and accounts as presented.  One is the matter of the lack of care on the part of the van driver, which means I agree with the original judge and the dissenting judge -- except that I think the degree of negligence was worse than they did, because the driver should have remembered passing Ormiston.

As for ICBC's teaching materials and road test standards, at no time did I suggest that Ormiston's counsel should have waved around a copy of Learn to Drive Smart in the courtroom.  Rather, what I'm pointing out is that I'm not impressed by the way ICBC is talking out of both sides of their mouth.

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