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43 It is undisputed that Daniel was not wearing a helmet at the time of the accident. It is also undisputed that Daniel sustained a head injury. However, there is no evidence before the court that the head injury Daniel sustained would not have occurred if he had been wearing a helmet. The court heard evidence that bicycle helmets help prevent head injuries and the literature suggests that helmets reduce the risk of head injuries by 60 to 75 per cent. However, the extent to which a helmet could have reduced or prevented Daniel's head injury in this case is unknown.
Relevant Case Law
Vardabasso v. Sundholm-Millar , 1994 CarswellBC 2269, [1994] B.C.J. No. 408 (B.C.
S.C.) (hereinafter “ VARDABASSO ”)—The Plaintiff cyclist was riding her bicycle at night without any lights and while wearing dark clothing. The Defendant was traveling on a cross street with a stop sign, and failed to properly stop. The evidence suggested that if the Defendant had stopped and been properly attentive to the situation around her, the Defendant would have seen the cyclist and the accident would not have occurred. The Plaintiff was found to be 20% contributorily negligent as a result of the lack of lights on the bicycle and failure to wear reflective clothing. Although the Plaintiff was not wearing a helmet, there was no evidence that her injuries would have been lessened by wearing a helmet, and no contributory negligence was assessed in that regard.
Hodder (Guardian ad litem of) v. Waddleton , 1993 CarswellNfld 373, [1993] N.J. No. 262 (Nfld.
T.D.) (hereinafter “ HODDER ”)—Para. 70 paraphrased: A claim of contributory negligence against a cyclist arising from the failure of a cyclist to wear an appropriate safety helmet is to be assessed in the context of the damages arising from the accident. The extent of the contributory negligence is to be determined by the extent to which the injuries sustained might have been lessened by the use of an appropriate safety helmet.
Matkin v. Hogg , 2015 BCSC 560 (B.C. S.C.) —the plaintiff was riding a bicycle at night without a helmet or light. After failing to stop at a stop sign, the plaintiff carelessly rode into the intersection without realizing the defendant was going to make a left turn. The defendant bore some blame for being careless in not seeing the plaintiff when she was there to be seen and in not signalling his intention to turn left. The lighting would have been sufficient for the defendant to have seen the plaintiff but he had not. The plaintiff was held 65% at fault for accident while the defendant was held
35% at fault.
In Abou-Marie (Litigation Guardian of) v. Baskey , 2001 CarswellOnt 4337 (Ont. S.C.J.) , a tenyear-old was severely injured when her bicycle was struck by a pick-up truck. The court found that her failure to look before entering the roadway constituted contributory negligence. She was also not wearing a helmet at the time of the accident. On this issue, the court noted that the wearing of helmets at that time was not mandatory and that, in any event, there is no evidence that the outcome would have been any different if she had been wearing a helmet. As a result of her failure to look, the court apportioned her percentage of liability at 30%.
Similarly, in Repic v. Hamilton (City) , 2009 CarswellOnt 6796 (Ont. S.C.J.) (affirmed by 2011
CarswellOnt 4458, 204 A.C.W.S. (3d) 205 (Ont. C.A.) and additional reasons in 2011

CarswellOnt 11734, 208 A.C.W.S. (3d) 673 (Ont. S.C.J.) ), the court failed to find a cyclist contributorily negligent for not wearing a helmet given that there was no evidence that the head injury he sustained would not have occurred if he had been wearing a helmet. The cyclist was, however, found to be contributorily negligent for all of the following reasons: (a) he did not stop before entering the exit ramp; (b) he was riding a bicycle which did not have any lights; (c) he was riding a bicycle at night while wearing dark clothing; (d) he either did not look or failed to look properly for oncoming traffic before entering the roadway; and (e) he either did not see the vehicle because he did not look properly, or, if he did see the vehicle and the headlights, he miscalculated the distance and took a chance of riding his bicycle into the exit ramp. The cyclist was found to be
45% liable for the accident.
In Noseworthy v. Ontario (Superintendent of Insurance) , 1998 CarswellOnt 3391 (Ont. Gen. Div.) , the court held that the fact that a cyclist was not wearing a helmet at the time of the accident was
“irrelevant” because he was not on the highway.
Labanowicz v. Fort Erie (Town)
(iii) Contributory Negligence
19 The appellant submits the trial judge erred in finding that there was no contributory negligence given that: the respondent failed to wear a helmet, she and her riding companion did not report the missing bollard when they first rode past the Cherry Hill intersection approximately 30 to 60 minutes before the accident, and the respondent failed to keep a proper lookout.
20 We do not give effect to this submission. The appellant did not establish a basis for a finding of contributory negligence because it failed to adduce sufficient evidence to meet its onus that something that the respondent did or did not do caused or contributed to the accident or the severity of her injury. For example, the appellant lead no admissible evidence that the failure of the respondent to wear a helmet exacerbated her injuries.
St. Marthe v. O'Connor
121 Mr. St. Marthe did not suffer a head injury in the accident but, according to the defendant, the failure to wear a helmet contributed to the injury which he suffered because of the steps he took to protect his head when he was knocked off his bicycle. None of the doctors said that the absence of a helmet or the manner in which he tried to break his fall caused or contributed to his back injury. It is obviously prudent to wear a helmet when bicycling but the defendant has not proven the necessary causal link between the alleged contributory negligence and the injury: see Snushall at paras. 25-27.
122 Although the defendant acknowledges that Mr. St. Marthe took his earbuds off and slowed down as he approached the exit, he contends that he should have done more but does not specify what, other than stopping before he reached it. Mr. St. Marthe did not have to do so because he could reasonably assume that the defendant would comply with his legal duty to yield the right-of-

way to him. Moreover, it was not until Mr. St. Marthe was passing by the exit that the defendant decided, at that moment, to leave the lot and enter the public roadway. There was nothing Mr. St.
Marthe could have done to avoid the collision. The reliance on Niitamo is misplaced. In that case, the trial judge found that the plaintiff bicyclist did not have the right-of-way and was therefore contributorily negligent. There was also uncontradicted medical evidence that his injuries might not have been as extensive if he had been wearing a helmet.
Krudwig:
2. Was the plaintiff, Blair Krudwig negligent?
17 The defendants' position is that the plaintiff, Blair Krudwig, failed to exercise reasonable care for his own safety in riding without his hands on the handlebars and by not wearing a bicycle helmet.
18 The plaintiff's position is that he was not negligent.
19 Blair Krudwig and Jeff Smith, the independent witness, testified that Blair Krudwig's hands were on the handlebars. Bradley Budden, who was in the rear of the truck, testified that Blair
Krudwig did not have his hands on the handlebars at the time that Mr. Johnston started his turn. I prefer the evidence of the plaintiff and Jeff Smith on this issue as being more likely. At the time the truck was beginning its turn, Blair Krudwig was actively trying to avoid the ultimate collision. He did, in fact, manoeuvre his bicycle to the right and applied the brakes to maintain control and brought the bicycle over to the curb and onto the sidewalk. I am satisfied that he was alert and aware of the traffic around him and that he did everything he could to avoid the collision. Bradley Budden was in the rear area of the truck and I am satisfied that his recollection of the events was in relation to the second bicyclist and not the plaintiff, who I find was in fact the third cyclist. Mr. Budden was asked for his recollection of these events six years post-accident and I am satisfied his recollections have been affected by the significant lapse of time. On the whole of the evidence I find that Blair Krudwig was riding with his hands on the handlebars and was operating his bicycle in a safe and prudent manner.
20 At the time of the accident, it is acknowledged that there was no law requiring the plaintiff to wear a bicycle helmet. None of the three cyclists was in fact wearing a helmet. There is no evidence that the collision would have been avoided or that Blair Krudwig's injuries would have been different if he had worn a bicycle helmet. I am satisfied that there was nothing further that Blair Krudwig could have done to avoid the accident. I am satisfied that there was no negligence on the part of Blair
Krudwig in relation to this accident.
White v. Aransibia
P cyclist travelling southbound on west side on sidewalk
Rode bike across intersection
No helmet
No light (but fairly well-lit intersection)
Travelling at excessive speed
D motorist turned left into path of cyclist
Cyclist was there to be seen
Negligence:
D motorist made a turn in front across the path of a cyclist but did not see him. The cyclist was there to be seen. Intersection well lit
P cyclist was travelling at excessive speed, biked across a crosswalk, was not keeping a proper lookout.

110 It is obvious, therefore, that she made a left turn across the path of the defendant's bicycle.
She did not see him before the impact. He was there to be seen. A number of witnesses testify to how well lit the area was.
111 On the other hand, I am satisfied from the severity of the impact resulting in the broken window, that the plaintiff was traveling at an excessive rate of speed into the pedestrian crosswalk on his bicycle when he collided with the defendant's motor vehicle. I take into account as well the fact that he was not wearing any reflective material. He did not have a light nor reflectors on his bicycle. In addition, he ought not to have continued into the crosswalk without stopping and getting off of his bicycle. It should have been readily apparent that Ms. Aransibia was in the process of making a left turn across his path. He, himself, was traveling at an excessive rate of speed and was not keeping a proper lookout. He failed to see the vehicle of Ms. Aransibia which was there to be seen.
112 In addition, his injuries were contributed to, in part, by his failure to wear a helmet
113 In all of the circumstances, I am satisfied that both parties were equally negligent in causing the accident and in causing the injuries. Liability for the accident will accordingly be apportioned
50/50.
Pelletier:
78 Jerry is not without fault however. He rode his bike straight out onto the intersection from an area that all witnesses agree was quite dark. Indeed, I find that he would not likely have been visible at all to Officer Moore until he entered the intersection. He was wearing dark clothing without a light or other reflective surfaces, save for two little strips on his pedals that may or may not have been visible. He did not have a light, contrary to the provisions of the HTA . I find that he was adequately visible in the intersection even without a light, but a light would have made him visible in the dark area he came from, prior to the collision. It would likely have afforded Officer Moore additional time to react to Jerry's presence.
79 Moreover, Jerry was riding his bike in a crosswalk, contrary to the provisions of the HTA . He was in a place he ought not to have been on a bicycle according to the law. He was travelling at a rate of speed that gave others in the intersection little time to react to his presence. He was almost struck by Ms. Speiran. He was indeed struck by Officer Moore.
80 There was evidence given by Ms. Speiran that Jerry was on a cell phone as he rode across the intersection. I am not satisfied that he was. Jerry said his cell phone had been disconnected and that he kept it with him to tell the time and to keep track of his contact numbers. The cell phone was found at the scene of the accident, but there was no independent evidence as to whether it was active.
81 Ms. Speiran gave a statement to the police on the night of the collision. She did not mention
Jerry being on a cell phone at that time. She told an SIU investigator that she did not actually see a cell phone in Jerry's hand. At trial she said she saw the phone and saw the glow of the phone's light against his cheek. Her evidence is not sufficiently reliable to satisfy me that Jerry was indeed on a cell phone. Had Jerry been on a cell phone while riding across the path of Officer Moore's car, it would have been a point of such significance that I consider it highly unlikely that Ms. Speiran would have failed to mention it when first questioned by the police. Moreover, it strikes me as unlikely that she indeed saw a glow from the phone against Jerry's cheek. According to her evidence, she not see Jerry until the very last second as he passed in front of her car. In that brief moment they turned to look at each other and she said she thought they might have words. At the same time, however, according to her, in that brief instant, he was also talking to someone on his phone and she distinctly

saw the glow of the phone light against his face. Such a scenario strikes me as unlikely. When taken with her failure to mention the phone when questioned by police and Jerry's evidence that his phone service was discontinued, I am not satisfied that he was on his phone when the impact occurred.

Lights:
Booth v. Sault Ste. Marie (City) , 1994 CarswellOnt 5684, [1994] O.J. No. 3105 (Ont. Gen.
Div.) (hereinafter “ BOOTH ”)—The deceased was a cyclist riding home at about 9:00 p.m. He was cycling approximately 3 feet from the curb and from the parked car that he moved out to avoid.
His vehicle was equipped with front and rear lights that were functioning at the time of the accident and the defendant bus driver testified that he had no issue seeing the deceased prior to the accident. At paras. 73 –77, the Judge found that the obligation on the deceased as a cyclist was to keep as far to the right as was safe and practicable under the circumstances, and the obligation of the defendant bus driver who was overtaking the deceased was to provide reasonable and safe leeway. In the result, no contributory negligence attached to the deceased cyclist.
Parkes v. Heiberg , 1992 CarswellOnt 3426, [1992] O.J. No. 1921 (Ont. Gen. Div.) (hereinafter
“ PARKES ”)—The plaintiff cyclist was riding his bicycle at night without any lights and while wearing dark clothing. The Defendant made allegations with respect to contributory negligence by the Plaintiff, but no evidence was led by the defendant to show that any of the plaintiff's negligence actually contributed to the accident. In the result, no contributory negligence attached to the Plaintiff cyclist.
Vardabasso v. Sundholm-Millar , 1994 CarswellBC 2269, [1994] B.C.J. No. 408 (B.C.
S.C.) (hereinafter “ VARDABASSO ”)—The plaintiff cyclist was riding her bicycle at night without any lights and while wearing dark clothing. The defendant was traveling on a cross street with a stop sign, and failed to properly stop. The evidence suggested that if the defendant had stopped and been properly attentive to the situation around her, the defendant would have seen the cyclist and the accident would not have occurred. The plaintiff was found to be 20% contributorily negligent as a result of the lack of lights on the bicycle and failure to wear reflective clothing. Although the plaintiff was not wearing a helmet, there was no evidence that her injuries would have been lessened by wearing a helmet, and no contributory negligence was assessed in that regard.
Jordan v. Fitzgerald , 1949 CarswellOnt 313, [1949] O.J. No. 268 (Ont. H.C.) (hereinafter “
JORDAN ”)—The plaintiff was a motorcyclist driving in the center of the lane on a highway. The motorcycle was proceeding within the speed limit, there was room to pass the motorcycle on its left, but the motorcycle did not have a rear lamp. At paras. 29 –33, the Judge and assessed the plaintiff as being 1/3 contributorily negligent.
Quade v. Schwartz , 2008 CarswellBC 1147, [2008] B.C.J. No. 1032 (B.C. S.C.) , as modified by the Court of Appeal in 2009 CarswellBC 346, [2009] B.C.J. No. 268 (B.C. C.A.) (hereinafte r “
QUADE ”)—The plaintiff cyclist was riding his bike on a street well after sunset. Both the plaintiff's clothing and his bicycle were dark and difficult to see, and the bicycle did not have a light. The plaintiff had the right-of-way, which the defendant failed to yield to the plaintiff. At trial, the plaintiff was found 75% contributorily negligent.
On appeal, the apportionment of negligence was varied to 50%. The appellate Judge commented at para. 28 that, “... although the absence of a headlight on the bicycle was a negligent act on the plaintiff's part, it had relatively little to do with the defendant's failure to see the plaintiff given the welllit nature of the intersection ...”
Braun v. Lauze , 1987 CarswellBC 1357, [1987] B.C.J. No. 61 (B.C. S.C.) (hereinafter “
BRAUN ”)—The Plaintiff cyclist was riding his bicycle without a light when struck by the Defendant.

Nevertheless, the Plaintiff was “there to be seen” and had the right-of-way. The defendant failed to see the plaintiff or yield the right-of-way. The trial Judge determined that part of the purpose of requiring vehicles (including bicycles) to have lights was to give other drivers notice of the lighted vehicle's presence, and that the absence of a light contributed to the accident. The plaintiff was determined to be 10% contributorily negligent.
Matkin v. Hogg , 2015 BCSC 560 (B.C. S.C.) —the plaintiff was riding a bicycle at night without a helmet or light. After failing to stop at a stop sign, the plaintiff carelessly rode into the intersection without realizing the defendant was going to make a left turn. The defendant bore some blame for being careless in not seeing the plaintiff when she was there to be seen and in not signalling his intention to turn left. The lighting would have been sufficient for the defendant to have seen the plaintiff but he had not. The plaintiff was held 65% at fault for accident while the defendant was held
35% at fault.
White v. Aransibia
P cyclist travelling southbound on west side on sidewalk
Rode bike across intersection
No helmet
No light (but fairly well-lit intersection)
Travelling at excessive speed
D motorist turned left into path of cyclist
Cyclist was there to be seen
Negligence:
D motorist made a turn in front across the path of a cyclist but did not see him. The cyclist was there to be seen. Intersection well lit
P cyclist was travelling at excessive speed, biked across a crosswalk, was not keeping a proper lookout.
110 It is obvious, therefore, that she made a left turn across the path of the defendant's bicycle.
She did not see him before the impact. He was there to be seen. A number of witnesses testify to how well lit the area was.
111 On the other hand, I am satisfied from the severity of the impact resulting in the broken window, that the plaintiff was traveling at an excessive rate of speed into the pedestrian crosswalk on his bicycle when he collided with the defendant's motor vehicle. I take into account as well the fact that he was not wearing any reflective material. He did not have a light nor reflectors on his bicycle. In addition, he ought not to have continued into the crosswalk without stopping and getting off of his bicycle. It should have been readily apparent that Ms. Aransibia was in the process of making a left turn across his path. He, himself, was traveling at an excessive rate of speed and was not keeping a proper lookout. He failed to see the vehicle of Ms. Aransibia which was there to be seen.
112 In addition, his injuries were contributed to, in part, by his failure to wear a helmet
113 In all of the circumstances, I am satisfied that both parties were equally negligent in causing the accident and in causing the injuries. Liability for the accident will accordingly be apportioned
50/50.

Repic:
(B) to What Extent Is the Plaintiff, Daniel Repic, Contributorily Negligent?
39 I make this finding for the following reasons:
(i) Daniel did not stop before entering the exit ramp;
(ii) Daniel was riding a bicycle which did not have any lights;
(iii) Daniel was riding a bicycle at night while wearing dark clothing;
(iv) Daniel either did not look or failed to look properly for oncoming traffic before entering the roadway.
(v) All the evidence suggests that if Daniel had looked properly, the Powell vehicle was there to be seen. Mr. Powell's motor vehicle lights were on and operating. Either Daniel did not see the vehicle because he did not look properly, or, if he did see the vehicle and the headlights, he miscalculated the distance and took a chance of riding his bicycle into the exit ramp.
40 I do not find that the luminaire pole obstructed Daniel's view. The luminaire pole is four feet from the edge of the roadway and it is unreasonable to suggest that an individual, even a young person, would decide whether or not it was safe to cross a roadway on the basis of observations made four feet from the edge of the roadway. If the luminaire pole did block Daniel's view at any point of time prior to reaching the edge of the roadway, there was no such obstruction at the edge of the roadway where he should have made his observations of the Powell vehicle.
41 The court heard much evidence regarding the fact that Daniel and his friends were riding their bikes on the sidewalk contrary to a City of Hamilton by-law. Aside from perhaps inferring that this conduct on the part of the plaintiff might suggest evidence of his knowledge or lack of knowledge about City by-laws and his willingness or unwillingness to obey the rules of the road, nothing turns on this information. The reason I say this is because, in my view, once Daniel made the 90 degree turn around the light pole, he was no longer riding on the sidewalk, but on a multi-use path. This distinction will become important later in the course of these reasons.
42 I also find that this location was not a designated pedestrian crosswalk. It was unmarked.
Instead, it was a properly constructed crossing. There was nothing preventing Daniel from riding his bicycle on this crossing once it was safe to do so.
Similarly, in Herbert (Litigation Guardian of) v. Brantford (City) , 2010 CarswellOnt 3461 (Ont.
S.C.J.) (with additional reasons in 2010 CarswellOnt 8813, 195 A.C.W.S. (3d) 341 (Ont.
S.C.J.) and affirmed by 2012 ONCA 98 (Ont. C.A.) ), a cyclist was found to be 60% liable for his injuries on the grounds that he demonstrated a serious lapse of judgment in how he chose to pass other cyclists on the trail that he was riding and because of the fact that he was speeding.

82 The apportionment of liability is very difficult. My view is that the greater share of liability must fall to Officer Moore, for the reasons I have discussed.
83 The defendants provided the Court with two decisions where liability in accidents between motorists and cyclists in crosswalks was apportioned fifty/fifty: one was Bajkov (Guardian ad litem of) v. Canil , as above; the other was White v. Aransibia , [2003] O.J. No. 2580, [2003] O.T.C. 586 (Ont.
S.C.J.). These cases are instructive to the extent that they apply fault to a cyclist who rides through a crosswalk contrary to a statutory prohibition. They do not establish a rule that there is a default liability apportionment in such circumstances of fifty/fifty. Each case must turn on its own facts.
84 In my view, an appropriate allocation of liability in all the circumstances of this case is sixty percent to the defendants and forty percent to the plaintiff. In other words, they each bear significant responsibility, but Officer Moore somewhat more so, for the reasons I have stated.
85 I turn now to a consideration of damages.
Torok (Guardian ad litem of) v. Sekhon : Apportionment of liability
4. Where parties to be deemed equally at fault
If it is not practicable to determine the respective degree of fault or negligence as between any parties to an action, such parties shall be deemed to be equally at fault or negligent.
Stamatopoulos v. The Regional Municipality of Durham :
Didn’t find D negligent, but said had he found D negligent, would have applied principle and given 50%
Stradiotto v. BMO Nesbitt Burns Inc.
House v. Baird in Cempel v. Harrison Hot Springs Hotel Ltd.
(1997), 43 B.C.L.R. (3d) 219 (B.C. C.A.) , by criticizing apportionment of responsibility based on an assessment of relative degrees of causation as between the plaintiff and defendant. He drew a distinction between “causation” and
“blameworthiness” when he said at para. 19:
I think that such an approach to apportionment is wrong in law. The Negligence Act requires that the apportionment must be made on the basis of “the degree to which each person was at fault”. It does not say that the apportionment should be on the basis of the degree to which each person's fault caused the damage. So we are not assessing degrees of causation, we are assessing degrees of fault. In this context, “fault” means blameworthiness.
Ultimately, the passenger's appeal was allowed and the court reduced the assessment of contributory negligence to 5%.
A number of Ontario cases have addressed the potential shared liability of a cyclist in circumstances where he or she was injured but was not wearing a helmet.

For example, in Snushall v. Fulsang , 2005 CarswellOnt 4578 (Ont. C.A.) leave to appeal refused, 2006 CarswellOnt 1366 (S.C.C.) , the Court of Appeal considered the appropriate approach to contributory negligence where a passenger was injured in a motor vehicle accident but was only wearing a lap belt and not a shoulder harness. As noted by the court, the Highway Traffic
Act [ generally ], R.S.O. 1990, c. H.8, required the car's occupants to wear the seat belt, but did not require them to wear the shoulder harness. At trial, the jury found that the passenger was 35% contributorily negligent for failing to wear the shoulder belt. Writing for the court, Justice Juriansz held that the jury's assessment of the passenger's contributory negligence was “beyond the scope of anything that could be accepted as reasonable on the record in this case.” Following the case law,
Justice Juriansz held that an apportionment of 25% represented the upper limit of the amount of damages based in contributory negligence in seat belt cases. Justice Juriansz also held that allocation of responsibility between a plaintiff and a defendant in this type of contributory negligence case should not be based on causation, but rather must be based on blameworthiness. At paragraphs 28 and 29, he made the following comments on this issue:
Given the different character of the defendant's negligence and the plaintiff's contributory negligence, the question of how to divide responsibility for the plaintiff's injuries between them is difficult. It is not as straightforward as allocating responsibility among several actors all of whom have played a role in causing an accident because, in such a case, the sum of each person's individual negligence must add up to 100%. By contrast, the degree of a defendant's negligence in causing an accident bears no relationship to how much of the damage might have been prevented had the plaintiff worn a seatbelt. No matter what the degree of the defendant's responsibility for causing the accident, the plaintiff might have averted all or none of the damage. In some cases, it may be said that both the plaintiff and the defendant “caused” 100% of the damage because the defendant's negligence is the sole cause of the accident and the plaintiff's injuries could have been completely prevented by wearing a seatbelt.
Since the extent to which the defendant and the extent to which the plaintiff “caused” the injuries are not related and cannot be compared directly, “causation” cannot be the basis of the allocation of responsibility between them. Lambert J.A. of the British Columbia Court of Appeal pointed this out