In a recent decision from the Alberta Courts, a motorcyclist
standing next to his motorcycle parked on the side of a service road and
struck by a passing motorist was deemed to be an "occupant" of his motorcycle
and not a pedestrian as might otherwise be concluded. Because the motorcyclist
was not considered to be a "pedestrian" at the time of the accident, he
was denied the benefit of Section 180 of the Alberta Highway Traffic
Act, or the "reverse onus" provision as it is more commonly known,
which forces the car driver to prove no fault lies with the car driver.
Generally speaking, when motorists are involved in an accident, an injured party is entitled to recover damages only if he or she can prove that the other motorist was negligent. Once proven, it is then up to the negligent motorist to prove that the injured party's actions contributed to the accident. If the negligent motorist can prove the injured party contributed to the accident, then the injured party's entitlement to damages will be reduced by the amount he or she contributed to the accident
This is not the case, however, when a motorist strikes a pedestrian. Here, the motorist is presumed to be negligent. And, while the motorist has the opportunity of proving that the pedestrian's actions contributed to the accident, the onus of proving that no fault lies with the motorist remains on the motorist.
In the Bruneau v. Caseley [1998] A.J. No. 1131 (QB) decision, a motorcyclist, Mr. Bruneau, sustained injuries when he was struck by a passing motorist as Mr. Bruneau stood next to his motorcycle parked on the shoulder of a service road. Approximately 10 to 15 seconds before being struck, Mr. Bruneau noticed the oncoming motorist lose control of his vehicle; but when it appeared to Mr. Bruneau that the motorist had regained control of his vehicle, he turned his back to the oncoming vehicle.
In his decision, Mr. Justice Lee of the Alberta Court of Queen's Bench held that because Mr. Bruneau did not make any attempts to leave his motorcycle to walk along the roadway or walk in adjacent fields, he was considered to be an "occupant" of his motorcycle at the time of the accident and not a pedestrian. As a result, Mr. Bruneau was not entitled to the presumption of fault in favour of pedestrians; but rather he had the burden of proving the passing motorists negligence.
Mr. Bruneau did go on to prove the passing motorist's negligence. However, the Court found that Mr. Bruneau himself contributed to the accident to the extent of 20% when he turned his back to the oncoming vehicle after he saw the motorist temporarily lose control. The Court held that had Mr. Bruneau continued to face the approaching traffic (a prudent requirement) when standing at the side of a roadway, he may have been able to jump out of the way immediately prior to impact, or at least minimize the effect of the two impacts which occurred from the force of the vehicle on his body and the force of his own motorcycle striking him.
Note: this is only a trial level decision as counsel for the motorcyclist chose not to appeal. While counsel's decision not to appeal is somewhat surprising, we cannot offer any explanation for his decision. Because this is only a trial level decision, therefore it is not necessarily the definitive law on this issue. The Court of Appeal has the power for the ultimate determination of the issue. As you may appreciate, we can think of many submissions contrary to this decision. We were not counsel on this trial.
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