In this infant personal injury claim a six year old boy riding his bicycle (McIlvenna v. Viebig, 2012 BCSC 218) was injured in a car crash with a motor vehicle.  The car accident occurred  near an uncontrolled T-intersection where a road that runs along the west side of the Tsawwassen Town Centre Mall  intersects with Library Road in Delta, British Columbia.   The young injury claimant was making a left turn on his bicycle and  the trial was only concerned with the question of  who was at fault for the accident.
This was the second trial of this personal injury case,  a new trial having been ordered by the Court of Appeal in McIlvenna (Litigation guardian of) v. Viebig, 2008 BCCA 105.
The court concluded that , notwithstanding the obligation to use greater care because of the presence of children, the young injury claimant had not established that the other driver did not exercise reasonable care.  The evidence established the contrary, that the accident occurred when the claimant cut the corner into the car’s oncoming lane, at a time when the car was driving with extreme care.
Interestingly, the judge went on to address whether, if his decision was wrong, the cyclist was contributorily negligent.  Despite this boys tenders years the judge  would have apportioned fault to the driver at 60% and the young cyclist  at 40%. In making this find the judge stated,

[130]  The questions are: whether the child had the capacity to be negligent by the application of the test in McEllistrum; was the child negligent measured against the conduct of a reasonable child of the same age and in the same circumstances; and what apportionment should follow the attribution of fault for that negligence (Ottosen v. Kasper (1986), 37 C.C.L.T. 270 (B.C.C.A.)).

[131] Much of the evidence about the ability of the young plaintiff to understand and appreciate danger in the circumstances and what level of care is to be expected from a child of like age, intelligence and experience, came from the cross-examination of the plaintiff’s mother. 

[132] The plaintiff had ridden a tricycle at age 2, and was taught about road safety by his parents from that time.  He was taught to watch for cars at an intersecting roadway, and never to enter when there was a car immediately around him.  He was taught that he was supposed to ride his bicycle on the sidewalk.  The plaintiff was described by his mother as of average intelligence and she thought he had a fairly decent understanding of road safety.  He had ridden a bicycle since he was about 4 or 5 years old.  He had been taught when riding his bike at an intersection to proceed only after checking to see if there was no traffic.  In his mother’s company, his mother observed her son stopping at intersections to check for traffic and make sure there were not cars coming out of driveways.  She said she never observed him disobeying these rules.  It appears that the plaintiff’s parents were careful to instill the rules of the road in their son given their proximity to busy streets and their sons’ use of their bikes.  Both the plaintiff and his older brother knew the rules of the road, as they applied to bikes and cars at intersections. 

[133] In the case at bar, the plaintiff, I find, was well versed in the rules of the road for a boy of his age, and understood that when he got to the T-intersection he ought to have slowed down to ensure he could turn without danger.  He did not do so.  I conclude that in the circumstances he was probably distracted by his desire to keep up with his older brother, and in being so caught up he failed to pay heed to the rules of the road of which he was aware.

[134] Although the plaintiff was distracted by the fact that his brother was ahead and he wanted to keep up with him, he nevertheless understood the rules of the road and the fact that he was at an intersection where there were vehicles, and he had to be careful of other vehicles.  Even though the plaintiff was aware of the requirement to exercise care and slow down at an intersection, he overlooked that in order to catch up with his older brother.  I think that in the circumstances, if the defendant is negligent, that the plaintiff must nevertheless accept some fault for cutting the corner and riding in the oncoming lane. 

[135] In the circumstances, if I had found the defendant to be negligent and that his negligence caused the collision, which I have not, I would apportion fault to the defendant at 60% and to the plaintiff at 40%.

Important to consider hiring a personal injury lawyer as early as possible for this type of risky claim. Posted by personal injury lawyer Mr. Renn A. Holness

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