L-O-V-E is all I have to give
In this weary world we search for love in many places. Cyclists find love on, and sometimes in, their bikes. The corollary is that without a bike, a cyclist's heart is often broken.
The question: Does such a heart matter to the Supreme Court of British Columbia?
The answer: of course it does. This was recently affirmed in a judgment of Mr. Justice Brooke in an action arising out of the collision between a motor vehicle and a bicycle on the morning of April 10, 2003 in Vernon, British Columbia.
The victim was, of course, a cyclist, or should I say, a cyclist in love with cycling. In fact, not only was Mr. Johnstone a manager of a bike shop, he excelled in both road cycling and off?road cycling. According to the judgment, cycling was his passion . Many readers will know Mr. Johnstone. He was one of the organizers of Critical Mass. For that reason, evidence about Critical Mass was heard at the trial.
To my knowledge this is the first judgment in the Supreme Court of BC that discusses the nature and purpose of Critical Mass. It does not appear that the legal significance of Critical Mass was examined. As interesting as that would have been, it was naturally beyond the scope of the trial Judge's mandate, which was to assess Mr. Johnstone's damages based on, among other things, his loss of enjoyment of life of which Critical Mass was an integral part. In this regard, His Lordship noted:
"He [Mr. Johnstone] was one of the organizers of a bicycling event called Critical Mass, which is a spontaneous coming together of a large number of cyclists who occupy the road as a single body such that the operators of motor vehicles become more aware of bicycles on the road and their operators. As I understand it, it is both a social and collective cycling event, as well as an event that proclaims the shared use of the road and promotes public recognition of that shared use."
(It is fascinating to note that Mr. Johnstone's participation in collective disobedience was tendered in a court of law in support of a damages claim. Do you feel the love?)
Sadly, as a result of his injuries, Mr. Johnstone had neither the physical ability nor the motivation to pursue his pre-accident love of cycling and other physical activities from which he derived much of his self-worth.
In relative terms, Canadian courts take a conservative approach to the loss of enjoyment of an activity such as cycling. Underlying the approach is a fear that incongruously large awards for intangible losses (e.g. enjoyment) will strain the insurance system and give rise to a similar social burden as seen south of the border. For that reason, Canada has put a cap on non?pecuniary damages", that is, damages associated with pain and suffering and loss of enjoyment of life. The limit on these damages is the subject of enormous debate within the legal world.
As to Mr. Johnstone's case, the Judge accepted that for him cycling was a form of therapy and an important feature of the Plaintiff's pre?accident life." Without it, the Judge found that he was deeply afflicted and that his loss was truly significant.
Money is a barren substitute for health and happiness. But while its relationship to loss may seem at times tenuous and artificial, the underlying compensatory principle of damages is fundamental to society and, in my view, particularly important to the cycling community and its own access to justice.
Dugald Christie, the 65-year-old pro bono champion and executive director of Access Justice, was run down and killed while riding his bicycle to the Canadian Bar Association Conference in Newfoundland this past summer. He rode his bike from Vancouver to Ontario before being run down. He was riding his bike across Canada to bring to the attention of government officials the importance of access to justice, regardless of status or income. My partner, Bruce Fraser Q.C., has assumed Dugald's position and is committed to his legacy of ensuring justice for all.
The loss of enjoyment of cycling suffered by Mr. Johnstone and his fight for full and fair compensation for that loss would have moved Mr. Christie, whose mangled bicycle his family hopes to bronze and place in a prominent institution in Vancouver, such as the Courthouse. It is to Dugald Christie, Mr. Johnstone and the love of cycling in general that I dedicate this article.
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