Why Not Stay?

The obligation of a person having charge, care or control of a vehicle to stop and stay at the scene of an accident was recently reviewed by the British Columbia Court of Appeal. The issue was whether a motorist had a duty to stay at the scene in circumstances where an "accident" with a cyclist had occurred, but without damage to person or property.

Fortunately, for the cycling community, the news is good.

By way of background, the appeal was brought by a motorist who had been convicted in provincial court of failing to remain at the scene of an accident. The provision of the Criminal Code under which he was convicted states:

"every person commits an offence who has the care, charge or control of a vehicle…that is involved in an accident…and with the intent to escape civil or criminal liability fails to stop the vehicle…give his name and address…"

The motorist had left the scene after lightly but intentionally bumping the rear tire of a cyclist following the cyclist's refusal to accede to his demand that she move out of the way "or I'll hit you".

It was acknowledged by all parties there was no damage to the cyclist's bike and no personal injury.

At trial and on appeal, the motorist rested his case on the notion that if every incidental contact between vehicles in society required everyone to remain at the scene of the accident, there would be enormous inconvenience. Damage, he argued, must be an essential ingredient of the offence. Without it, the proper movement of traffic would grind to a halt.

(This is an interesting defence, from someone who intentionally assaulted a cyclist, and who was attempting to overturn a conviction of assault with a weapon, the weapon being the car.)

The Court of Appeal rejected the motorist's argument for several reasons.

First, the applicable provision of the criminal contains no reference to "damage" or "injury". If Parliament thought damage or injury were a necessary element of the offence, it would have said so. The court held that damage or injury is not an essential element of accident in the same way that injury is not an essential element of "assault".

Secondly, the court held that an "accident" within the meaning of the legislation is not limited in meaning to an unintended and unexpected occurrence. Rather, it includes both intentional and unintentional conduct.

Thirdly, as long as the motorist leaves the scene in an effort to escape any liability, either civil or criminal, the legislation applies. It is not triggered by damage or injury, but by the collision itself.

For the cycling community, this decision must be heralded as a great victory. Cyclists have no ability to chase motorists. The decision to leave or remain at the scene of an accident with a cyclist cannot be properly based on the motorist's own subjective assessment of damage or injury. Such assessments are bound to be self serving – particularly in road rage cases.

By interpreting "accident" broadly, the Court of Appeal has endeavoured to determine the sense in which Parliament used the word.

Any concern that this decision will result in a flood of charges around harmless accidents is easily answered – the Police and Crown are responsible for bringing charges. Experience shows they will be reticent to do so unless there is an injury, damage or element of road rage at the heart of a motorist's decision to leave the scene of an accident. Ultimately, it becomes a question of resources and lamentably, those resources are not always used for the benefit of cyclists.

David W. Hay is a litigation lawyer and partner at Richards Buell Sutton LLP. The information above is not legal advice. Anyone seeking legal advice should call David directly at 604.661.9250 or email him at dhay@rbs.ca for a free consultation.