As the spring and summer rides are starting, cyclists and ride organizers should be aware of the recently released (April 05, 2013) Ontario Superior Court case, Kempf v. Nguyen.
Madam Justice D.A. Wilson found a cyclist liable for injuries sustained by another cyclist when a crash occurred at the Becel Ride for Heart on the closed off Don Valley Parkway. The Defendant cyclist was found responsible for the crash when he made a sudden and erratic move without signaling, causing a rear approaching rider to lose control and crash. Both were experienced cyclists. In finding the Defendant liable, Justice Wilson stated,
I find that Nguyen was negligent, that his negligence consisted of making a sudden movement while riding in a group, failing to maintain a straight line, failing to signal his intention to move and moving directly into the path of the Plaintiff when he could have moved out to the right.
The case is significant since their has been few civil actions where a cyclist has been held liable for the injuries of another cyclist. As many aware, most cycling claims arise when the cyclist is struck down by a car or truck. The Court held that their is a duty to take care amoung cyclists and went on to find,
the participants … in a group ride had to ensure they did nothing to put the safety of the other riders in peril. There is an element of trust between cyclists who ride in a group because of the proximity to others and the fact that any sudden or unexpected movement can have a disastrous effect on the safety of the other rider
The Defendant cyclist had argued that there was an “inherent risk” associated with the sport and the ride and therefore there ought not to be a duty of care. In dismissing this defence, the Court stated that the fact that cycling carries with it some inherent risks does not mean the duty of care of Nguyen is negatived.
As to what standard will a cyclist be put to in regards to their fellow riders, the Court concluded,
reasonable care depends on what the participant agreed to reasonably expect given the nature of the sporting event, in a case involving cycling, there is no reason to impose a higher onus on the Plaintiff, to prove that the Defendant conducted himself in a reckless fashion. By its nature cycling is not a contact sport or one that involves physical encounters with opponents such as football or rugby
Although the injured cyclist had signed a waiver, it was held that it did not release a claim for negligence against another rider. The lawyer for the injured cyclist did not pursue any case against the Heart and Stroke Foundation.
For those ride organizers, a review of the case and the commentary regarding the waiver is essential. When dealing with the issue of the waiver, Justice Wilson noted,
The waiver is poorly drafted and confusing … While there is reference to the “participants”, the waiver does not release other participants, but rather the various organizations from claims against them, including damages occasioned by the negligence of a participant or other competitor. It clearly does not release other riders from claims arising from their negligence during the ride.