A Surrey bicyclist who tried to sue a motorist who struck him down in a Newton crosswalk has found out it was he who had broken the law.
“The plaintiff is the author of his own misfortune,” the judge found.
Joginder Singh Dhanoya, 73, was cycling on his regular route to his Sikh temple on Nov. 21, 2015, on a clear, dry day, when he was struck by a car driven by Jodie William Stephens.
Dhanoya was riding his bicycle in a pedestrian crosswalk on 70A Avenue, near 122nd Street, when he was hit. A five-day trial in B.C. Supreme Court in Vancouver, with Justice Janice Dillon presiding, tackled issues of liability, causation of the crash, and the amount of damages.
“A driver approaching a marked crosswalk assumes a heightened duty to take extreme care and maintain a vigilant lookout for those that might be in the crosswalk,” the judge noted. “It is important to remember that the standard of care is not one of perfection, but whether the driver acted in a manner which as ordinarily prudent person would act.”
But Dillon also noted Dhanoya contravened the Motor Vehicle Act by riding his bike in a crosswalk. “He did not have the statutory right of way when he bicycled across the crosswalk because he was not a pedestrian.”
Dillon found Dhanoya “100 per cent at fault” for the accident. “The action is dismissed.”
At trial, Stephens had argued Dhanoya was wholly responsible for the crash, Dillon noted, as he rode his bike though the crosswalk “right in front” of car “without stopping to ensure that it was safe to proceed.”
On the other hand, Dhanoya argued that he stopped at the crosswalk before crossing but the driver “was distracted, failed to see him in the crosswalk and struck him in the middle of the crosswalk,” the judge noted.
“There is no issue that the defendant was driving below the speed limit.”
Dhanoya told the court he sometimes gets off his bike and pushes it across the crosswalk but because he saw no cars on the road, he cycled across.
“Within about five to seven seconds, he was hit by the defendant’s vehicle and fell,” Dillon wrote in her May 9 reasons for judgment. “He did not hear or see the car coming.”
Stephens told the court he was heading to the library with his wife and daughter, glanced to his right and when Dhanoya came right out in front of him without stopping, applied his brakes and “bumped” the rear of the bike.
Dhanoya was not thrown, but fell off his bike on impact. “He instinctively grabbed for his turban which had fallen off,” the judge noted. “He remained momentarily on the ground before trying to get up. He stumbled but managed to get up as others came to assist. His left hand was bleeding. Both knees were sore, particularly the right. He had struck his head on the ground. He waited for 20 minutes at the side of the road before his daughter-in-law arrived.”
Police came to the scene and ticketed Stephens for failing to yield to a cyclist in the crosswalk. “The ticket was cancelled because the offence only applied to a pedestrian in a crosswalk,” Dillon said.
“In the event that I am in error in the assessment of liability, damages are considered as follows.
“I would award non-pecuniary damages in the amount of $30,000,” she said, and $2,361.96 in special damages.
Dhanoya had sought damages in the range of $50,000 to $75,000.
“The plaintiff testified that he had lost his sense of mobility and independence,” the judge noted. “Even though he was fully retired, he had continued to enjoy his days out to the temple and in the garden prior to the accident. After the accident, he felt frail and less inclined. I accept that the accident did have this effect upon the elderly plaintiff.”