Legal Brief – Overcoming “Car Bias”

Canadian Legal Brief

In 1993, the cycling community in British Columbia received a very special gift called Pacheco v. Robinson. I have used this decision many times since it was rendered, and it still affords the legal foundation for a cyclist to guard against “car bias” in the assessment of liability.

Joseph Pacheco, an infant plaintiff, was riding his 12-speed mountain bike heading eastbound towards an intersection while Dorothy Robinson was driving her car west towards the same intersection with the intention to turn left.

The young rider was in the curb lane about 15 feet (4.5 meters) behind and to the right of a motor vehicle that had passed him in the lane closest to the center line. This vehicle obstructed Pacheco’s view of the left turning driver and obstructed Robinson’s view of the rider. As the light changed to amber, Pacheco stood up on his bicycle to go faster through the intersection and was struck by Robinson as she commenced her left turn.

At trial, the judge concluded that Pacheco was partly responsible for the collision. He believed that Pacheco was negligent for failing to exercise some caution as he approached the intersection in anticipation of the signal change. The trial judge stated that cyclists are less visible, travel slower, and accelerate less quickly, and that because of their vulnerability must be more defensive than drivers of automobiles.

The Court of Appeal found that the trial judge had “erred in law” in finding Pacheco partly negligent. A great proposition emerged from this case, that is, simply because cyclists are more vulnerable, they are not required by law to anticipate every eventuality or take extra care. As a practical matter, it is always wise to be hyper defensive, but as a legal matter, a cyclist is not held to a higher standard based on his or her vulnerability.

If a cyclist is proceeding with the right of way, as was the case with Pacheco, the cyclist would only be found partly responsible if, once the cyclist became aware of the motorist’s disregard for his right of way, he failed to take reasonable evasive measures. To fix blame on the cyclist for failing to anticipate that a driver might disregard his right of way would be to hold him to a much different standard than that of someone operating a motor vehicle.

In some respects, this case was a re-affirmation of the law as it had previously stood. At the time, and ever since, it has been trumpeted as the beginning of a new legal era for people on bikes.

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 at dhay@rbs.ca.