2008 BCSC 1089 Sivasubramaniam v. Franz

Before: The Honourable Madam Justice Baker

Reasons for Judgment

Counsel for the Plaintiff	E. Anthony Thomas
Counsel for the Defendant	William N. Fritz
Date and Place of Trial:	February 4-8, 2008
	Vancouver, B.C.

[1] On March 30, 2004, the plaintiff, Mr. Sivasubramaniam, was seriously injured when he and the bicycle he was riding collided with and were dragged under the concrete mixer truck driven by the defendant Mr. Franz, and owned by Mr. Franz’s employer, the defendant Valley Rite-Mix Ltd. The plaintiff alleges that the accident was caused solely or in part by the negligence of Mr. Franz. The defendants claim that Mr. Sivasubramaniam’s negligence was the sole cause of the collision. The trial proceeded on the issue of liability only.

FACTS

[2] At about 5:20 p.m. on March 30, 2004, Mr. Sivasubramaniam left the auto-body shop where he was employed as a mechanic, having completed his work day. He was riding his bicycle and following the usual route he took to travel from his workplace to his home at 946 Brunette Avenue in Coquitlam B.C. He was in no particular hurry. It was a clear and sunny day, and the roadways were dry. Shortly before the collision occurred, he had stopped at a convenience store on the south side of Lougheed Highway to purchase cigarettes, and had then resumed his trip.

[3] Mr. Sivasubramaniam was travelling east on Lougheed Highway, which is designated as Highway 7. Mr. Sivasubramaniam intended to cross Blue Mountain Street, which intersects Lougheed Highway, and then turn left from Lougheed Highway onto Brunette Avenue at the next intersection. Blue Mountain Street runs roughly north/south; Lougheed Highway roughly east/west. Brunette Avenue intersects both Blue Mountain Street and Lougheed Highway at a south-west/north-east angle, creating a triangle.

[4] Traffic eastbound on Lougheed Highway intending to head south on Brunette Avenue cannot turn right at Brunette and instead must turn right onto Blue Mountain Street, travel south approximately one block, and then turn onto Brunette Avenue.

[5] At the point where Lougheed Highway intersects with Blue Mountain Street, there are three eastbound lanes. Two of these – the two outside lanes – are regular lanes of travel. The third lane, which starts a short distance from the intersection, is reserved for vehicles turning left from Lougheed Highway to head north on Blue Mountain Street.

[6] Running along the furthest outside lane for traffic there is a paved shoulder, approximately one-half the width of a driving lane. It is separated from the right hand, or slow driving lane by a solid white fog line. Near the intersection of Lougheed Highway and Blue Mountain Street this shoulder area narrows, and there is a cement curb on the far right of the shoulder area. The fog line demarcating the shoulder area ends before the intersection with Blue Mountain.

[7] There are two parallel lines marking a pedestrian crosswalk from east to west, to the south of where the shoulder area would be if it continued through the intersection, and two parallel lines marking the pedestrian crossing from south to north, across Lougheed Highway.

[8] As Lougheed Highway approaches the intersection with Blue Mountain Street, it slopes downward. There is also a downward grade for traffic heading south on Blue Mountain Street.

[9] Immediately prior to the collision, Mr. Franz was also eastbound on Lougheed Highway. He had completed a delivery of concrete and was heading to Abbotsford. The mixer was empty, and Mr. Franz was in no particular hurry. He intended to make a right hand turn at Blue Mountain Street to head south on Blue Mountain Street and then enter onto Brunette Avenue, heading southwest in order to eventually exit onto Highway 1.

[10] Mr. Franz’s vehicle was some distance ahead and to the east of Mr. Sivasubramaniam’s bicycle. Mr. Franz had activated the right hand signal lights on his vehicle as he approached the intersection of Lougheed Highway and Blue Mountain Street. There are three right turn flashing signal lights – one located on the right fender of the front wheels, one on the trailing edge of the right rear wheel well, and one on the rear face near the end of the rear right frame rail. Although one of these lights is partially obscured by equipment on the vehicle, two are clearly visible from behind the mixer truck, and all three are clearly visible at certain angles.

[11] As he approached the intersection, the light for eastbound traffic turned to red, and Mr. Franz brought his vehicle to a stop at the intersection. There were no vehicles between his vehicle and the stop line. His right hand signal lights remained activated while he was stopped at the intersection. Mr. Franz agreed that because of the size of his vehicle, he would drive forward into the intersection a short distance, and then turn his vehicle to the right onto Blue Mountain Street. In subsequent observations, Mr. Franz was able to turn right without first moving forward, but Mr. Franz’s testimony was that on the day in question, he did pull forward before starting to turn to the right.

[12] Mr. Sivasubramaniam was not riding his bicycle in a driving lane of Lougheed Highway. Instead, he was riding on the shoulder of the roadway, positioning his bicycle in the approximate centre of the shoulder area. He saw the traffic lights for eastbound traffic on Lougheed Highway turn to red as he was approaching the intersection at Blue Mountain Street. When he saw the light turn red, he applied his bicycle brakes and then coasted until he saw the light turn to green, at which point he resumed pedalling and began to accelerate. He was bent over on his bicycle, with his head down and his hips elevated. As he accelerated, he was passing vehicles in the driving lanes to his left who were waiting for traffic ahead to move through the intersection.

[13] Mr. Sivasubramaniam and Mr. Franz testified about their recollections of how the collision occurred. In addition, three independent witnesses who were present at the scene testified about their observations.

[14] I am satisfied that both Mr. Sivasubramaniam and Mr. Franz did their best to give honest and accurate testimony about the events of March 30, 2004. Considerable time has passed since the events they were describing.

[15] Although I believe that Mr. Sivasubramaniam was an honest witness, I found his evidence to be less credible than that of Mr. Franz and the independent witnesses. Mr. Sivasubramaniam was seriously injured as a result of the collision and I consider it likely that his ability to recall the events immediately preceding the collision has been adversely affected by his injuries and the shock he no doubt experienced in the immediate aftermath of the collision.

[16] Evidence given by Mr. Sivasubramaniam at trial conflicted with evidence he gave during his examination for discovery on several points. Some of these discrepancies concerned innocuous matters – whether Mr. Sivasubramaniam was wearing a jacket on the day of the accident, for example, and whether the jacket was a light or dark shade of green – but others were more serious, including discrepancies concerning whether Mr. Sivasubramaniam steered his bicycle to the right and into the east/west pedestrian crosswalk as he entered the intersection and prior to the impact with Mr. Franz’s concrete mixer truck, or whether he maintained a straight course, or whether he steered to the right, but remained north of the northern-most line marking the crosswalk.

[17] The evidence of both drivers, and the three independent witnesses was no doubt affected by the fact that there was nothing to cause them to take particular note of the events until seconds before the collision occurred. In Mr. Franz’s case, he did not see Mr. Sivasubramaniam at all before the collision, and was unaware that the collision had even occurred until the frantic gestures of an oncoming motorist caused him to look into his rear view mirror and see the plaintiff’s bicycle on the roadway.

[18] I found the three independent witnesses to be sincere and credible. As is common, however, their perceptions differed in some respects. There were discrepancies for example, between the evidence of Heather Johnson and her daughter, Ricky Johnson, about whether the concrete mixer truck and their own vehicle had come to a complete stop at the intersection before the collision occurred, and about the exact location of their vehicle when the plaintiff passed them on the right on his bicycle. On the most significant aspects of their testimony, however, their evidence was consistent, and also consistent with that of the third independent witness, Mr. Locke.

[19] Both parties retained expert accident reconstruction analysts, who, in addition to their reports, provided the court with extremely detailed and technical oral testimony concerning the opportunities each of the parties had to avoid the collision, estimated reaction times and braking distances, and estimated vehicle speeds.

[20] Based on the assumptions he made, or was given, the plaintiff’s expert, Mr. Brown, was of the opinion that Mr. Franz ought to have seen Mr. Sivasubramaniam in his right side mirrors, and could have stopped his vehicle before it reached the plaintiff’s path, thereby avoiding the collision. The defendant’s expert, Mr. Toor, took issue with many of the assumptions used by Mr. Brown, and concluded, based on the assumptions he made, or was given, that Mr. Sivasubramaniam should have seen the Franz vehicle commence its turn, and would have had adequate time to avoid the collision had he done so.

[21] The usefulness of the expert testimony was significantly undermined by the fact that both experts had to rely on assumptions that were not elevated above the hypothetical by the actual evidence presented at trial. The exact position of the vehicles on the roadway at the point of collision, for example, cannot be determined with any degree of certainty. Estimates of the speed at which the bicycle was travelling prior to the collision differed widely. In the end, I concluded that Mr. Sivasubramaniam was travelling at a much greater rate of speed than his estimate, or the speed assumed by Mr. Brown.

[22] The experts were helpful in confirming the testimony of the eyewitnesses that Mr. Sivasubramaniam’s bicycle collided with that portion of the concrete mixer truck that is immediately behind the second, or rear, set of tractor wheels – the portion of the vehicle between the tractor and the mixer, and approximately one-half way along the length of the concrete mixer truck, and that when he struck the vehicle, he was roughly perpendicular to it.

[23] Mr. Sivasubramaniam’s evidence about when he first noticed the concrete mixer truck changed throughout his testimony. At one point in his direct evidence, he testified that he first saw the concrete mixer truck stopped at the intersection when he was approximately 40 to 60 feet from the intersection, and that it was at this same distance that he saw the traffic light turn green. Later in his direct evidence he said that he had probably noticed the truck much earlier, before the light turned green, and before he resumed pedalling his bicycle. Later, he conceded that he is really not sure when he first saw the concrete mixer truck, and that it is possible that he has confused feet and meters at various times when giving estimates.

[24] Mr. Sivasubramaniam agreed that his attention was primarily focused on the color of the traffic light, because he would have had to bring his bicycle to a stop if the light was still red when he reached the intersection. He agreed also that once the light turned green, he focused his attention on the roadway straight ahead of him, and resumed pedalling. At this time, I conclude, he was approaching the intersection on a downward slope, and as a result of both the slope and his actions in pedalling his bicycle, he would have been accelerating as he approached the intersection.

[25] Mr. Sivasubramaniam agreed that he made no effort to ascertain that the driver of the concrete mixer truck could see him approaching on the shoulder of the roadway, although he agreed that he was riding less than two feet to the right of the fog line.

[26] Mr. Sivasubramaniam testified that he assumed that the concrete mixer truck would go straight through the intersection. On examination for discovery, Mr. Sivasubramaniam testified that he did not look for turn signals indicating any vehicles were intending to turn right at Blue Mountain Street, although he agreed that he knew that vehicles did frequently make right turns at that intersection.

[27] Mr. Sivasubramaniam testified the concrete mixer truck drove straight ahead the entire width of the first north/south lane of Blue Mountain Street, but I consider this evidence improbable. Mr. Franz testified he did travel forward a short distance before turning to the right, but not across an entire lane. Subsequent re-enactments indicated that Mr. Franz was able to negotiate the turn without driving any significant distance in a forward direction before executing the right hand turn, and did so on three successive occasions when asked by Mr. Toor to execute the turn in his usual way.

[28] Mr. Sivasubramaniam estimated his speed as he passed the second vehicle behind the truck at 5 to 10 km per hour, but I am satisfied that this is an underestimate and that he was more likely travelling at a speed between 10 and 20 kph – likely in the higher portion of that range – based on the fact that he was pedalling to accelerate on a down-slope, and that all of the independent witnesses described his speed as quite fast.

[29] Mr. Sivasubramaniam’s evidence on discovery and at trial concerning whether he did, or was intending to cross the intersection by riding in the pedestrian crosswalk is contradictory. He testified that that was his usual practice, but also that he did not do so in this case, and intended to ride next to the northern-most line of the crosswalk, but not in it. This testimony indicates that it is likely that as he entered the intersection, Mr. Sivasubramaniam was steering his bicycle to the right. This would place him on an angled downward slope, which likely also increased his speed immediately prior to impact.

[30] In contrast, all of the evidence indicates that Mr. Franz’s concrete mixer truck was moving at a slow speed throughout its turn. Mr. Sivasubramaniam estimated the truck’s speed at only 5 to 6 kph at the point of impact.

[31] As Mr. Sivasubramaniam was gaining on the concrete mixer truck, he noticed in his side vision that it was turning. He testified that he tried to turn right with the truck, but it was too late. However, one of the independent witnesses, Mr. Locke, testified that he did not see the bicycle brake or swerve prior to impact, suggesting that Mr. Sivasubramaniam did not see the turning vehicle until just before he collided with it.

[32] Mr. Sivasubramaniam’s recollection is that he was alongside the right rear tire of the truck when it started to turn, and approximately two and a half feet from the side of the truck. He believes that both he and the truck were near the east/west crosswalk when the collision occurred. For reasons that I shall refer to later, I am satisfied that Mr. Sivasubramaniam is incorrect, and that the truck had commenced its turn much earlier, and at a time when Mr. Sivasubramaniam was still several car lengths from the intersection.

[33] Mr. Franz testified that he did not see Mr. Sivasubramaniam at all before the collision happened. He recalled having brought his vehicle to a stop at the intersection with his right turn signal lights flashing. There were no vehicles ahead of him in his lane. When the light turned green, he slowly pulled forward over the east line of the north/south crosswalk and then started to turn to the right. He checked his mirrors on both sides and then did a shoulder check through the back window of his vehicle. The mirror attached to the door of his cab has two portions – a regular mirror and a convex mirror that reflects the area below the door in the area of the front rear axle and some equipment to the rear. He started the turn in second gear and did not change gears.

[34] Mr. Franz estimates that he drove forward a distance of about 10 feet only before starting his right turn. As his vehicle’s rear tires crossed the east/west crosswalk on Blue Mountain Street he felt a bump. He thought the bump was caused by driving over a drain. At this point, a northbound vehicle on Blue Mountain Street honked and the driver pointed and Mr. Franz stopped his vehicle and looked back and saw Mr. Sivasubramaniam’s bicycle on the roadway.

[35] Ricky Johnson and her mother Heather Johnson were the driver and passenger in a pick-up truck that was also eastbound on Lougheed Highway, in the same lane but behind Mr. Franz’s vehicle. There was, I conclude, one vehicle – a small import car – between their vehicle and Mr. Franz’s truck.

[36] Both of these witnesses testified that as they approached the intersection of Lougheed Highway and Blue Mountain Street, they saw the concrete mixer truck ahead of them, nearing or stopped at the intersection where the traffic light for eastbound traffic was red. Ricky Johnson, who was driving, slowed her vehicle as she came up behind the traffic ahead because she could see that the traffic light was red. Both women testified that they could see the right hand signal lights on the concrete mixer truck flashing, indicating an intention to turn right.

[37] Heather Johnson was seated in the front passenger seat of her daughter’s vehicle. She testified that she saw the light for eastbound traffic turn to green and saw the concrete mixer truck start to make a slow right hand turn. At this point, she noticed a man on a bicycle – I conclude it was the plaintiff – pass by on the right of her daughter’s vehicle, travelling at a fast speed. She saw the bicycle drive into the side of the truck, which was far enough into its right hand turn to have its front bumper on Blue Mountain Street. She testified that the truck was “sideways” when the bicycle hit it, and recalled that the bicycle struck the truck behind the truck’s front wheels.

[38] Mrs. Johnson testified that there was no doubt in her mind that the truck was already turning to the right when the bicycle passed by the vehicle in which she was a passenger, and that the truck was not moving quickly as it made its turn.

[39] Ricky Johnson also testified that the light had turned green for eastbound traffic and the concrete mixer truck had started to turn right before the plaintiff passed her vehicle on the right. She recalled there being only one vehicle ahead of her between her vehicle and the truck. She recalled that her vehicle was moving in second gear at a speed of between 10 and 20 kph when the plaintiff passed by her on the right. She estimated, therefore, that the cyclist was travelling at a faster speed than her vehicle, and probably in the same range.

[40] Ricky Johnson recalled that the concrete mixer truck had already initiated its right hand turn when the plaintiff’s bicycle passed her vehicle. She said she could see the front right side wheels of the truck as it was making the turn.

[41] Both Heather and Ricky Johnson spoke to a police officer at the scene of the accident. Constable Ewanyshyn of the Coquitlam RCM Police testified that he was despatched to the scene and arrived there at about 5:35 pm. He spoke to the two women briefly, and later wrote a short note on his Continuation Report.

[42] The Continuation Report prepared by Constable Ewanyshyn reads as follows:

I spoke to 4 witnesses, 2 in the same vehicle, a red Toyota 0731GG. Driver and front seat passenger, mother (passenger) & daughter (driver) were 2 vehicles behind the cement mixer (sic) both said that the mixer was stopped #1 at a red light E/B on Lougheed in slow lane at Blue Mountain going eastbound. The traffic light turned green and the mixer turned right. The bicycle was in the process of passing the mixer on the right but only got about halfway by the mixer on the right when the mixer turned right.

[43] Plaintiff’s counsel suggested to Heather and Ricky Johnson that they provided the information that I have underlined above, and that their impression at the time was that the concrete mixer truck had, in effect, suddenly turned right, cutting off the bicycle.

[44] Both witnesses disagreed with those propositions. They denied having told the officer the information included in his brief report and said that they would not have said what was attributed to them, because it was not true.

[45] The officer’s brief report does not purport to be a verbatim quote; and is open to several interpretations. I accept the testimony of the Johnsons given at trial, and I am not persuaded that they have altered their testimony since the events in question. There were differences in their memories of exactly how the events unfolded, but they were clear and consistent in their testimony that the concrete mixer truck had already started into its right hand turn when Mr. Sivasubramaniam passed their vehicle. In other words, the concrete mixer truck was already into its turn before Mr. Sivasubramaniam reached and entered the intersection.

[46] Brent Locke also saw the accident. He was heading in a north-easterly direction on Brunette Avenue and was stopped in the left-hand lane on Brunette, waiting to make a left turn onto Blue Mountain Street. He testified that from that position he could see the intersection of Lougheed Highway and Blue Mountain Street very clearly.

[47] Mr. Locke testified that he saw the concrete mixer truck drive forward into the intersection and then commence a slow right hand turn. He estimated the truck was travelling at a speed of only 5 to 10 kph. He saw the plaintiff’s bicycle come straight into the intersection, travelling at considerable speed, and collide with the side of the truck. He estimated that the truck was 20 to 25 percent of the way into its turn when the cyclist hit the truck.

THE LAW

[48] The parties drew the court’s attention to various sections of the Motor Vehicle Act, R.S.B.C. 1996, C. 318. Those sections included:

144(1) A person must not drive a motor vehicle on a highway

(a) without due care and attention,

(b) without reasonable consideration for other persons using the highway, or

158(1) The driver of a vehicle must not cause or permit the vehicle to overtake and pass on the right of another vehicle, except … (none of the exceptions apply here)

(2) Despite subsection (1), a driver of a vehicle must not cause the vehicle to overtake and pass another vehicle on the right

(a) when the movement cannot be made safely, or

(b) by driving the vehicle off the roadway.

183(1) In addition to the duties imposed by this section, a person operating a cycle on a highway has the same rights and duties as a driver of a vehicle.

(2) A person operating a cycle

(a) must not ride on a sidewalk unless authorized by a bylaw made under section 124 or unless otherwise directed by a sign,

(b) must not, for the purpose of crossing a highway, ride on a crosswalk unless authorized to do so by a bylaw made under section 124 or unless otherwise directed by a sign,

(3) Nothing in subsection (2)(c) requires a person to ride a cycle on any part of a highway that is not paved.

[49] The parties assisted the court by providing copies of relevant decisions, including Vulcano v. Benitez, [1982] B.C.J. No 1722; Jang v. Fisher (B.C.C.A.), [1990] B.C.J. No. 2560; Boe v. Power, [1990] B.C.J. No. 247; Shepherd v. Campbell, [1993] B.C.J. No. 1615; Dolphin v. Lepine, [1999] B.C.J. No. 103; Hildebrand v. Canada (Royal Canadian Mounted Police), [2000] B.C.J. No. 2823, 2000 BCSC 1876; Cavezza v. Wallace, [1991] B.C.J. No. 3981; George v. Kembel, [1994] B.C.J. No. 2372; Chan v. Catroppa, [1995] B.C.J. No. 13; Boismier (Next friend of) v. St. Louis, [1997] B.C.J. No. 1124; Briscoe v. Hives (Prov. Ct. of B.C.), [1999] B.C.J. No. 445; Hill v. Reekie, unreported, January 14, 1998, SCBC Vancouver Registry No. B952705.

[50] As always, each of these cases turns on the specific facts found by the trial judge. Most of the cases did not involve a right hand turn made at an intersection. In Briscoe v. Hives, the plaintiff cyclist was found 100 percent liable for the accident that occurred when he attempted to pass, on the right, a vehicle that was signalling its intention to turn right and was executing that turn. In Vulcano v. Beniez, a case that did not involve a turn at an intersection, but rather a lane change, Justice Hinds concluded that a cyclist may pass a vehicle on its right where there is an unobstructed lane on the side of the roadway but that the cyclist must ensure that the passing can be made safely. In Vulcano, the defendant was found 75 percent at fault, but that was because the court concluded that the defendant driver had not commenced signalling his intention to make a right turn in a timely fashion. In Jang v. Fisher, the Court of Appeal concluded that the defendant driver had been negligent when she turned her car into a curb lane in front of parked cars without looking back, striking the plaintiff, who was riding a bicycle, as she did so. The plaintiff was found to be equally at fault for driving at an excessive speed.

[51] In Dolphin v. Lepine, Justice Burnyeat found the driver and cyclist equally at fault. In that case, the court concluded that the defendant driver had failed to make appropriate right shoulder checks before turning into the path of the cyclist plaintiff.

[52] In Hildebrand v. Canada (RCMP), the defendant driver was found solely at fault because he had overtaken the cyclist and then turned abruptly from the centre of the road into the path of the cyclist. A similar result was held in Cavezza v. Wallace. In that case, the defendant driver had overtaken the plaintiff cyclist and then made an abrupt right turn, cutting the plaintiff off and failing to give her enough time to react.

[53] In George v. Kembel, the plaintiff cyclist was found solely at fault when he overtook and collided with the right rear of the defendant’s vehicle as it executed a right turn.

[54] Following the conclusion of the trial in this matter, counsel for the defendant provided the court and the plaintiff with the decision of Justice Bauman in Hadden v. Lynch, 2008 BCSC 295. The facts are similar to the facts in the case at bar. The plaintiff Hadden was riding his bicycle along the north sidewalk of the Lougheed Highway. He intended to cross a street in the pedestrian crosswalk. The defendant vehicle driver checked his mirrors and initiated a right turn and the plaintiff’s bicycle collided with the side of his vehicle. Justice Bauman found the plaintiff cyclist solely at fault.

ANALYSIS AND CONCLUSIONS

[55] The evidence clearly establishes that Mr. Sivasubramaniam failed to meet the standard of care required of a driver in the circumstances, and that he was negligent. He was driving on the shoulder of the roadway, rather than in the lane marked for vehicle travel. I accept that it would also have been hazardous for Mr. Sivasubramaniam to ride in a driving lane on such a busy street, but having chosen to ride in an area that is not designated for vehicles; and to pass vehicles on the right hand side while travelling in that area, Mr. Sivasubramaniam had a duty to take extra care to ensure that he was visible to drivers, and that he took precautions. This was particularly so as he approached a busy intersection. Options available to him included signalling and moving into the driving lane to his left when it was safe to do so, and proceeding through the intersection in that driving lane; or stopping and dismounting from his bicycle and crossing the intersection in the pedestrian crosswalk and then remounting his vehicle on the other side of Blue Mountain Street.

[56] At the very least, he ought to have slowed his bicycle and to have checked carefully for indications that vehicles were intending to turn right from Lougheed Highway onto Blue Mountain Street, before proceeding across the intersection to the right of traffic in the driving lanes.

[57] Instead of driving in a cautious fashion, I conclude that Mr. Sivasubramaniam was accelerating as he approached the intersection, and, as I have said earlier, steered to the right with the intention of either riding in the cross walk – a prohibited act – or riding near it.

[58] Mr. Sivasubramaniam focused his attention on the roadway ahead of him, and did not look to see what was there to be seen, the three flashing right turn signals on Mr. Franz’s concrete mixer truck. His failure to see the signal lights was also negligent.

[59] Finally, the evidence of Heather and Ricky Johnson indicates that Mr. Sivasubramaniam should have seen Mr. Franz commence his right turn. Their evidence indicates that Mr. Franz had commenced his right turn before Mr. Sivasubramaniam passed their vehicle, which was at least three car lengths from the intersection. I am satisfied that had Mr. Sivasubramaniam been paying attention as he ought to have been, he would have seen the Franz vehicle start its turn and would have been able to slow or stop his bicycle, or to steer his bicycle in a manner to avoid the collision.

[60] Mr. Sivasubramaniam does not seriously contest the proposition that he was negligent and that his negligence was a significant cause of the accident, and his own injuries. The only issue is whether the plaintiff has shown, on a balance of probabilities, any act or omission on the part of Mr. Franz that constitutes a breach of the duty of care Mr. Franz owed in the circumstances.

[61] Mr. Sivasubramaniam received serious injuries in the collision. Although this trial did not focus on the issue of damages, Mr. Sivasubramaniam provided some brief testimony about his injuries and testified that he has not worked since the accident. These circumstances arouse sympathy, but the court cannot allow that natural sympathy to color the assessment of the evidence. Although I am sympathetic to the position of Mr. Sivasubramaniam, the evidence does not establish a negligent act or omission on the part of Mr. Franz that caused or contributed to the collision.

[62] This is not a case where a driver has passed a cyclist and therefore observed the cyclist’s presence, before turning across the cyclist’s path. This is not a case of a turn or lane change made without adequate notice to traffic approaching from the rear. Mr. Franz had been signalling his intention to make a right turn for some considerable time before he commenced the turn.

[63] This is not a case of a driver turning suddenly across the path of a cyclist, and effectively cutting the cyclist off. Mr. Franz made a slow turn, according to all of the evidence, and commenced his turn, I have concluded, at a time that Mr. Sivasubramaniam was some distance – several car lengths – from the intersection.

[64] As stated earlier, Mr. Franz freely admitted that he did not see the plaintiff at any time prior to the collision. Arguably, based on the testimony of the experts, Mr. Sivasubramaniam would have been visible in at least one of Mr. Franz’s mirrors. I am satisfied, however, that even if Mr. Franz had seen Mr. Sivasubramaniam prior to commencing his turn, a reasonable driver in his circumstances would have been fully justified in commencing his right hand turn, having earlier and consistently signalled his intention to do so, and given the fact that, based on the Johnsons’ testimony, Mr. Sivasubramaniam was several car lengths from the intersection when Mr. Franz commenced his turn.

[65] It would not have been reasonable for Mr. Franz to assume that Mr. Sivasubramaniam would ignore his turn signals, and the fact that he had commenced his turn, and proceed straight into the intersection.

[66] By the time Mr. Sivasubramaniam reached the intersection and posed a hazard, Mr. Franz was well into his turn, and at this point there would have been no potential for him to avoid the accident in any event. The fact that Mr. Sivasubramaniam collided with the centre portion of the concrete mixer truck, and was almost perpendicular to it at the point of impact, indicates that the slow-moving vehicle was well into the turn before Mr. Sivasubramaniam even entered the intersection.

[67] The evidence compels me to conclude that for some unknown reason, Mr. Sivasubramaniam simply failed to note the fact that Mr. Franz’s vehicle not only was intending to turn right, but had commenced that turn, and he failed to slow or stop his bicycle until it was too late to do so. Mr. Sivasubramaniam assumed, incorrectly, that the concrete mixer truck would proceed straight through the intersection. He made this assumption despite his knowledge that vehicles frequently do turn right at this intersection, and despite the signal flashing in several locations on the concrete mixer truck. Rather than slowing or stopping his bicycle as he approached the intersection, he was, I conclude, accelerating by continuing to pedal on the downward slope.

[68] I am obliged to conclude that Mr. Sivasubramaniam’s own negligence was the sole cause of the accident. Accordingly, the plaintiff’s action must be dismissed.

COSTS

[69] If the parties are unable to agree on the issue of costs, they are at liberty to make submissions about costs in writing, or to arrange with the Registry to appear to make further oral submissions.

“W.G. Baker J.”

Citation:	*Sivasubramaniam v. Franz,*
	2008 BCSC 1089