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Injured Jogger Sues Young Cyclist and Loses


In this personal injury case the claimant was jogging when he came up behind three young girls riding their bicycles. Two were on the sidewalk and one was riding on the street adjacent to the curb. The jogger intended to pass the girls on their right. As he was passing them, one ten year old moved her bicycle to the right and the jogger struck the rear tire and fell onto his shoulder. He suffered multiple injuries, the most serious being to his shoulder which required surgery. (Perilli v. Marlow,2018 BCSC 495)
The court found that the ten year old girl was part of a group that had blocked the sidewalk thus obstructed the jogger’s access. However, the court concluded that riding on the left side of the road did not contribute to the accident. It was reasonable for the cyclists to seek the sanctuary of the sidewalk on the side of the road that was facing traffic. By riding against the traffic, the cyclist  did not endanger the jogger.
Two parts of this case were very interesting. First, the way the judge addresses the standard of care for the ten year old child:

[17] The standard of care on a ten-year-old child is different than the standard attributable to an adult. A child is to be measured with the standard that conforms to another child of similar age, intelligence and experience: McEllistrum v. Etches [1956] S.C.R. 787 at p. 793. A momentary lapse in awareness may be expected from children; such a lapse does not result in a finding of legal responsibility: Connell v. Dyck, [1998] B.C.J. No. 1792 at para. 12.

Secondly, the judge writes an elegant synopsis of some of the more enviable qualities of witness conduct:

[29] Ms. M. presented as a polite and mature young person. She listened to the questions attentively and was appropriately responsive. She did not hesitate to make concessions when confronted with propositions that put her observations into question. She was not defensive about her evidence or stubborn in maintaining a view that was open to question. Ms. M. was an impressive witness.

Posted by Vancouver Personal Injury Lawyer Mr. Renn  A. Holness, B.A. LL.B.

Tags: At Fault, credibility, Legal Causation, Sidewalk, witnesses

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