Warren Bashutski - v. -, 2017 SKPC 017

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: February 8, 2017 Citation: 2017 SKPC 017 File: SC 539/16 Location: Regina _____________________________________________________________________________ Between: Warren Bashutski - and - Martha Peters Self Represented For the Plaintiff Self Represented For the Defendant JUDGMENT P. DEMONG, J Introduction [ 1 ] Shortly after 7:00 a.m. on the 2 nd day of May 2016, on a sunny day in Regina the plaintiff was driving his truck through a pedestrian crosswalk when it was struck broadside by a cyclist.

The plaintiff reported the accident to SGI which in turn advised him that he would be found entirely at fault for the accident because he failed to yield the right of way for a pedestrian. The plaintiff has brought this action to recover the cost of his insurance deductible which amounts to $700.00, together with the costs of this action against the defendant cyclist. He alleges that she was negligent in the operation of her vehicle and that her negligence was either the entire or predominant cause of the accident. [ 2 ] Following trial I rendered judgment and indicated that written reasons would follow.

I found the defendant to be 75% at fault for the accident and the plaintiff 25% at fault for the accident and I awarded him the sum of $525.00 in damages together with costs in the

sum of $35.00 for a total award of $560.00. These are my written reasons. Evidence Analysis and Findings of Fact [ 3 ] Warren Bashutski was driving to work northbound on McCarthy Boulevard at approximately 7:10 a.m. He was driving in the curb (east) lane of the three lanes of traffic northbound. He was driving a 2015 Ram pick-up truck. As he approached the pedestrian crosswalk, which is situated not at an intersection but rather half way between Eden Avenue and 1 st Avenue, he saw a bicyclist who had pulled up to the crosswalk pedestal on the east side of McCarthy.

She activated the red overhead stop lights and proceeded to ride across McCarthy Boulevard fully within the marked crosswalk. In response, he slowed down from his previous speed of approximately 50 kilometres per hour and started to roll to a stop. He says that he observed that bicyclist cross all lanes of northbound travel, and cross the concrete median and the remaining three lanes of southbound traffic on McCarthy.

He says he saw no one else in the intersection and proceeded to accelerate and just as he was entering the cross walk his truck was hit broadside by a bicyclist which was approaching his vehicle from his left on the crosswalk, travelling eastbound. I am satisfied that as he approached the intersection the red lights were still flashing. [ 4 ] He immediately brought his vehicle to a stop and provided first aid to the bicyclist who had fallen from her bike. 911 was called by a third party and the police arrived shortly thereafter.

They took statements and after noting that the damage to the plaintiff’s vehicle was restricted to the driver’s side mirror and over the front driver’s side wheel well chose not to lay charges against him. [ 5 ] The attending police officer gave evidence at trial and indicated that this decision was predicated in part on a 911 statement that had been recorded, indicating that the caller had been situated in a van in the median lane of southbound travel and had observed the incident, and having seen the defendant ride her bike into the crosswalk from the west side of McCarthy tried to warn her by yelling that traffic was flowing northbound.

While this evidence is hearsay, it merits attention only in so far as the positioning of that van is consistent with the plaintiff’s recollection that the only way he could not have seen the defendant as she entered onto the crosswalk from the west side of McCarthy is if she had come from behind a van that he thought was situated north of the crosswalk in the southbound curb lane of McCarthy. [ 6 ] The defendant bicyclist says that she is from a small town in Manitoba and was unfamiliar with the rules of the road as they relate to bicycles. She is an adult of unstated age.

She was not wearing a helmet but she was wearing sunglasses, and I am satisfied that she was also wearing ear buds attached to an I-Pod. She says that she had started biking at about 6:30 that morning, and was following a bike path. As she approached the crosswalk on the west side of the McCarthy, she would also have been presented with a pedestal indicating in clear letters a direction to stop and a direction telling cyclists to dismount. She did neither.

She says that because she saw the lights flashing, she entered the crosswalk and proceeded to ride her bike across the southbound lanes of travel on McCarthy and in so doing passed by the first cyclist in one of those lanes. She then crossed the concrete median and noted that the plaintiff’s truck was approaching the cross walk in the curb lane of northbound travel. She says that when she first observed his truck he was a ‘couple of hundred feet away from her for sure’.

At first, she indicated that she was riding her bike at a ‘pretty good speed’ but later changed that testimony to perhaps ten kilometres per hour. She says that she did not bother to make eye contact with the driver of the vehicle or pay any more attention to him because she felt that he had the obligation to stop for her as she drove her bike through the crosswalk. [ 7 ] The defendant inclined to the view that she had been hit by the front bumper of the plaintiff’s vehicle. There is no merit to her assertion.

The damages to the plaintiff’s vehicle is restricted to the driver’s side view mirror and the wheel well situated over top of the driver’s side front tire. This was confirmed with photographs, with the plaintiff’s evidence, and the evidence of the attending police officer. [ 8 ] I have some trouble in failing to understand why the plaintiff would not have seen the defendant as she rode into the crosswalk and I have no independent verification of the speed of the respective vehicles.

I do however have photographs of the accident location which assist me in identifying the distance that the defendant would have travelled from the time she entered onto McCarthy to the point of the collision. The photographs indicate three lanes of travel southbound and three lanes northbound. The plaintiff indicated that his vehicle was in the curb lane of northbound travel when the collision took place. The defendant would have to travel across five lanes of traffic and of course the concrete median to get to the collision site. The lanes are about eight feet wide and the median about the same.

She would have travelled approximately 48 feet before being hit. If she was riding at about ten kilometres per hour (six miles per hour) she would be riding at nine feet per second. But she says that she first saw the plaintiff’s vehicle when she passed the other cyclist at or about the median point of the highway. Therefore, from the time she saw his vehicle to the point of impact she would have travelled closer to 24 feet over the course of two to three seconds.

[ 9 ] If, as suggested by the defendant, the plaintiff’s vehicle was a ‘couple of hundred feet for sure away’ from her when she first saw him, he would have to have travelled those two hundred feet in the same two to three seconds which would place his speed at between seventy to one hundred feet per second or between forty-eight to sixty-eight miles per hour. (I appreciate the reader’s frustration in the conversion from imperial to metric speeds but that is how the evidence went in.

Forty-eight to sixty-eight miles per hour converts back to seventy-seven to one hundred and nine kilometres per hour). [ 10 ] I do not find the defendant’s estimate of her speed or distances credible. I find it difficult to conclude from her evidence that ‘she was proceeding at a pretty good speed’ to be only a nominal ten kilometres per hour. Nor do I accept that the plaintiff was travelling at such a high rate of speed. Rather, I accept the evidence of the plaintiff who presented credibly and who conceded to a frustration at not being able to explain why he did not see the defendant.

I accept that he slowed from fifty kilometres per hour to a rolling speed and then started to accelerate when he thought the crosswalk was clear. I am satisfied that, more likely than not he was proceeding into the crosswalk at a speed which was still under the speed limit.

Were, I to accept the defendant’s version I would have to conclude that over the course of two or three seconds she slowly and leisurely drove directly into the side of a vehicle that was approaching at as much as twice the default speed limit allowable on Regina residential streets. [ 11 ] When I look to the evidence as a whole, I conclude that the defendant wasn’t paying much attention at all. She ignored the direction to stop and dismount. She was wearing ear buds, and, I suspect, she was more likely than not listening to music. She drove her vehicle through a crosswalk in violation of the law.

She chose not to wear a helmet and she conceded unfamiliarity with the rules of the road. Without any consideration for her own safety or the safety of others, she proceeded through the crosswalk operating on the false assumption that other vehicles would be obligated by law to yield to her and that she owed no corresponding duty. [ 12 ] Conversely, the Plaintiff did exercise some reasonable consideration for other users of the highway. He observed the red light and slowed down to allow others to cross. He was in no apparent hurry as he did not have to report to work for another twenty minutes.

Immediately after the incident, he offered first aid and cleared the road of debris. I am satisfied, more likely than not that the defendant entered into the crosswalk at a ‘pretty good speed’, and that as she entered the crosswalk she was obscured from the plaintiff’s view at first instance because of the van that was located to the west side of McCarthy proceeding southbound ... that she came from the west and behind the van onto the cross walk and then proceeded to cross it without consideration of any traffic approaching from the south.

I accept that the plaintiff did as he said; that he watched the first cyclist cross the street and then looked back to his right to check for any other people or cyclists and then he started to accelerate. In the short period of time that elapsed as he looked to his right, the defendant drove up from behind and to the west of the van and drove directly into the side of his vehicle as it entered the cross walk. [ 13 ] In Regina, cyclists are governed by Bylaw 9900, and

section 81 of that Bylaw states that ‘Every cyclist shall operate a bicycle in accordance with the applicable rules of the road as set out in the Traffic Safety Act ‘.

Section 2(ccc) of that Act defines a vehicle as any device in or on which a person or thing is or may be transported, which by definition includes a bicycle.

Section 227 of that Act states that: No driver of a vehicle shall cross a highway within the boundaries of a hamlet or any municipality other than a rural municipality except: (

a) at an intersection with another highway; or (

b) if not prohibited by a municipal bylaw, at an intersection with a lane or alley. McCarthy Boulevard is a highway within the City of Regina and therefore, the defendant had no legal right to drive her vehicle onto the crosswalk. She was obligated to stop, dismount and walk her bicycle across the highway. [ 14 ] The defendant was also obligated to comply with

section 213 of the Act , and in so doing, drive her vehicle on the highway with due care and attention and with reasonable consideration for other persons using the highway.

While a breach of the rules of the road as set forth under The Traffic Safety Act is not negligence per se those rules of the road can, as our Court of Queen’s Bench has noted, be considered in the Court’s determination as to whether or not a driver is operating her vehicle in a careful and prudent fashion, and I am satisfied that in the instant circumstances her actions fell below the standard that would be demanded of a careful and prudent driver. Her conclusion that she need not exercise even a modicum of care to ensure that she could enter the crosswalk without any consideration of

other drivers or for her own safety is in my opinion reckless, and for that reason I find her negligent, and that her negligence was the predominant cause of the accident, and to the extent of 75%. [ 15 ] I attribute negligence to the extent of 25% to the plaintiff because, while his conduct is not nearly as reckless as that of the defendant, he knew, as he approached the crosswalk, that bicyclists may very well choose to enter the crosswalk while riding a bicycle. He had just seen it happen. He should not have entered into the crosswalk against a red light, while the lights were still flashing.

He should have waited until they stopped flashing. He should have known of the potential propensity of other pedestrians or bicyclists to take advantage of the slowing traffic and the flashing red lights to make use of that pause in the flow of traffic. His conduct can hardly be considered to be egregious, but, in my opinion, he should have waited for the lights to turn off before proceeding. Had he done so, and had the accident still happened I would have been hard pressed to find any liability against him at all. P. Demong, J