A $5.7 million court award for a cycling accident, ruled to be 75 per cent due to Langley Township negligence, is being reviewed by the municipality’s insurer.
“Because they are responsible for the defence, they (insurers) are a major factor in the litigation process,” said Township administrator Mark Bakken Wednesday.
James Aberdeen, a Surrey resident and an accomplished triathlete and Ironman competitor, suffered a spinal cord injury in an accident on 272 Street, north of 64 Avenue, on June 29, 2002.
According to the B.C. Supreme Court judgment, Aberdeen was training with friend Mike McGee that day. Near the end of their ride, they reached the 6000 block of 272 Street, a road known to them as steep and winding. Before descending, they agreed Aberdeen would take the lead.
Aberdeen testified that in the 6400-block of the road, a cube van crossed over the yellow centre line, and he took evasive action, swinging wide around a curve. Encountering gravel, and without time to brake, he was propelled against a metal guard rail. He went through a gap between the metal rail and a concrete barrier, and over an embankment.
The Nathan Creek Nursery van was driven by Joseph Zanatta and owned by Anne Cassels, defendants who were judged 25 per cent liable in the case.
Aberdeen alleged Township negligence, based on the a gap between the metal barrier he initially hit, and a cement no-post barrier, created in a 1999 project. His fall left him paralyzed from the chest down. He does have the use of his arms, but the judgment says that given the high level of his spinal cord injury, he has been described as a “quadriplegic masquerading as a Paraplegic.” McGee testified that he followed 10 to 15 metres behind Aberdeen, at a speed under the posted regulatory speed limit. Both cyclists testified that van crossed the centre line.
McGee’s evidence regarding a statement he made to police immediately after the accident was questioned by the defence. He had not mentioned the cube van. To challenge this suggestion of recent concoction, evidence by Ron Rose, a friend of the plaintiff and McGee, was read in. Rose saw McGee at the hospital on the day of the accident. McGee told Rose of the vehicle coming wide on the corner, and Aberdeen’s evasive action. Airvac ambulance attendant Keith Parks also testified that Aberdeen, at the scene, related the same incident.
Cassels testified she followed Zanatta’s loaded van up the hill and it was incapable of going fast. She described the van as coming to a stop close to the inside fog line of the road, prior to the curve. Zanatta testified he was driving at about 20 km/h, and that he did not come close to crossing the centre line of the road, he simply came upon the accident scene. But Zanatta apparently was contradictory about which cyclist came down first, which went over the bank, and his speed, a range of three-to-five km/h to 20 km/h.
Mr. Justice Groves said he preferred the evidence of Aberdeen and McGee and concluded that Zanatta did cross the centre line. He called Zanatta’s testimony ripe with inconsistencies and found “no realistic explanation” as to why Zanatta and Cassels did not remain on the scene.
The judge ruled that evidence is clear that Langley Township installed a cement no-post barrier along the road in question during a reconstruction in July of 1999, leaving the gap of anywhere of 12”-18” between which Aberdeen was propelled.
The judgment indicates the Township has since closed that gap. Bakken said that all Township guard rails have been reviewed since this accident.
It will be up to the Township’s insurance company to determine whether or not to appeal the judgement, he said.
The Township must pay a $25,000 deductible on the insurance policy, he said. Insurance premiums are reviewed on an annual basis, he said.
The judge found the Township owes a duty of care to those who travel on its roads and breached that duty to Aberdeen, “a reasonably foreseeable user of the road operating a bicycle on a dedicated bicycle route.”
He found the guard rail gap could have been avoided at a relatively modest cost of about $1,500, in July 1999. He ruled out contributory negligence against Aberdeen, finding no evidence the cyclist was travelling above the posted speed limit.
He concluded Aberdeen sustained permanent, catastrophic injuries and would require substantial personal care assistance.
The damages assessed included: non-pecuniary loss, $311,000; past wage loss, $153,249; future wage loss, $502,381; cost of future care, $4,151,504; cost of home replacement, $388,639; in trust claim, $96,000, and special damages of $45,000.
By Al Irwin