It has almost become a cliché to describe road cycling as the “new golf” but each year, it seems that the cycling calendar is filled with club rides, grand fondos, charity rides and other similar events that bring the cycling community together.   And what better way to spend a Sunday than zooming through the countryside with a group of riders at 30km/h?

This is not to say, though, that participating in a large group ride is not without its dangers.   Riders on a large group road ride tend to stick together in a pack, with the stronger riders at the front, sheltering those behind from the wind.   The result is a large group of fast-moving cyclists in extremely close quarters to one another.  On a large charity ride, such as the Ride to Conquer Cancer, these cyclists’ abilities will typically go right across the board from complete rookie to seasoned veteran.   All it can take is one bad move from a single cyclist in a group situation for a fun group ride to turn into a carnage-filled yard sale.   What is surprising, given cycling’s resurgence in popularity, is that there are not more personal injury lawsuits arising from accidents in cycling events.

Indeed, the only reported court decision in Ontario of which I am aware involving one rider suing another for injuries sustained on a charity ride is Kempf v. Nguyen [2013] OJ No. 1531 (Ont. S.C.J.), which arises from a crash at the 2008 Ride for Heart.   As many of you will know, the Ride for Heart is a single-day charity ride that takes place in downtown Toronto each June, taking place on the Gardiner Expressway and Don Valley Parkway.

In this case, Mr. Kempf and Mr. Nguyen were described by the trial judge as experienced road cyclists, who had participated in “many group rides” in the past, and who were familiar with the etiquette of riding in a peloton, although it turns out, both of them had only be riding for a year at the time of this incident which in my view makes them relatively inexperienced cyclists.   These “rules of etiquette”, include riding in a smooth and predictable manner, not braking suddenly, not overlapping wheels with the rider in front, and not swerving unexpectedly.   A cyclist who does any one of these things puts the other riders around them at risk.

The incident in question happened when Mr. Kempf, who was riding a few bike lengths behind Mr. Nguyen, accelerated to move in to Mr. Nguyen’s left so as to take advantage of the draft from a rider in front.   As Mr. Kempf pulled up next to Mr. Nguyen, and at the precise moment his front wheel was overlapping Mr. Nguyen’s back wheel, the riders in front of the two of them slowed down.   As a result of the peloton slowing down, the rider in front of Mr. Nguyen braked and suddenly swerved right.   To avoid colliding with this rider, Mr. Nguyen served left, which caused his front wheel to clip Mr. Kempf’s front wheel, resulting in Mr. Kempf falling and sustaining serious injuries.   Mr. Kempf sued Mr. Nguyen, alleging negligence on his part.

Mr. Kempf’s position was that Mr. Nguyen had breached the rules of cycling by failing to hold his line, unexpectedly swerving left without first announcing or signalling his intent to do so, and as such was negligent.  Although both riders had signed a waiver before participating in the event, Mr. Kempf’s position was that by signing this waiver (which was not a particularly clearly worded or exhaustive one), he agreed that he would abide by the rules of the road, that his bike was in good mechanical condition, and not sue the Ride for Heart in the event of the accident, but his evidence was that he did not understand that by signing the waiver he was agreeing to forego suing another participant who was negligent.    The waiver did not expressly mention claims against other ride participants.

Mr. Nguyen’s position was that he had to react in a split second to an emergency situation, caused by a rider slowing and swerving in from of him, and that he did so reasonably under the circumstances.   Moreover, the Defendant argued that participating in a group ride such as this one was an inherently risky activity and that the Plaintiff acknowledged this by signing the waiver before participating.  It does not appear that it was seriously argued at trial that the Plaintiff was contributorily negligent or the author of his own misfortune by overlapping wheels with the Defendant[1].

A number of other riders testified, and none of them saw a rider move unexpectedly to the right and slow down in front of the Mr. Nguyen.  One rider gave evidence that just before the accident, Mr. Nguyen stood up on his pedals as if he was going to accelerate hard and when he did so, his bike lurched to the left and hit the Mr. Kempf’s front wheel.   The trial judge found as a fact that Mr. Nguyen moved unexpectedly left for no apparent reason, and did not accept Mr. Nguyen’s evidence that he was reacting to another rider in front of him making an unexpected move.   She concluded that on a group ride, the riders in a peloton owe each other a duty of care, stating:

“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 riders”,

notwithstanding the risks inherent in a group road ride.

The trial judge then turned to the standard of care that is imposed upon participants in a group road ride, and concluded that participants on a group ride will not be found negligent for an accident on the ride if they behave in a manner consistent with the “reasonable” cyclist or if the injuries in question are the result of “a risk inherent in the sport in question”.   It was found that in this particular case, a reasonable cyclist would know to hold their line and to not make unexpected manoeuvres in the paceline without first giving prior warning.   As such, the trial judge concluded that Mr. Nguyen fell below the applicable standard of care by swerving left unexpectedly, and as such was negligent.      It was also found that the waiver signed by Mr. Kempf did not apply because it did not specifically exclude the negligence of other participants[2].   It is noteworthy that the waiver used by the Ride for Heart was revised extensively following this incident such that negligence of other participants was expressly excluded.

This decision was overturned on appeal as a result of the judge dismissing the jury that was scheduled to hear this matter before evidence was heard and hearing the case alone.   It was concluded that a new trial should be ordered before a jury so that the issue of whether Mr. Kempf was partially responsible for this accident could be considered.   However, the appeal did not concern itself with the trial judge’s findings of fact, or her analysis of the duty or standard of care.  This case settled before the second trial took place, so the trial judge’s decision in this case represents the current state of the law in Ontario as it pertains to negligence in group cycling events.

So what are the takeaways here for people who might want to participate in a charity ride, or who might want to organize one?

1. If you are participating, make sure that you abide by the “rules of the peloton”: hold your line, don’t half-wheel, don’t brake or slow unexpectedly, call out pot-holes for the riders behind and don’t make any unexpected moves.   If you fail to do so and someone gets hurt as a result, you could be looking at civil liability;
2. If you are organizing a grando fondo, charity ride or similar cycling event, you would be wise to “recruit” some of the more experienced riders participating as ride marshals, whose job it is in part to educate the less experienced riders in the peloton about the do’s and don’ts of group riding.
3. It might also make sense to have a link to a couple of articles about how to ride safely in a group on your event website, and to encourage newer riders to read same in advance;
4. A properly drafted waiver is a “must”. As can be seen by the Kempf v. Nguyen case, the court will read a waiver very carefully and any ambiguity (such as in this case the failure to exclude volunteers) will likely be interpreted against the ride organizer.
5. If you are reading this as a ride organizer and are not sure about how strong your event waiver is, please feel free to get in touch with me.

I hope that my comments on liability on group rides have been of interest.  I’ll see you out there on the road next spring.  Just don’t half-wheel me!

[1] It is important to note that either one of the lawyers representing the parties at trial was a cyclist, nor was the trial judge.   The lawyer representing Mr. Nguyen at appeal, however, is an extremely experienced cyclist himself….

[2] the trial judge found that the Ride for Heart waiver signed by Mr. Kempf was “poorly drafted and confusing”