By BEVERLEY WARE South Shore BureauTue, Jun 7 - 4:54 AM
BRIDGEWATER — As Nova Scotia becomes the first province in Canada to legally require motor vehicles to keep a safe distance from cyclists, the case of a severely injured Lunenburg County cyclist who was hit by a car is winding its way through Supreme Court.
Mark Stewart suffered traumatic brain injury after he was hit by a car that was turning into a school driveway, according to a negligence suit filed with the justice centre in Bridgewater. The documents say Stewart was cycling along Highway 3 outside Centre Consolidated School when the accident happened on Sept. 3, 2009.
The suit is filed by Stewart’s wife, Marlene Gent, who was named litigation guardian after a doctor wrote a letter saying Stewart, 58, is not competent to provide legal instruction and understand legal proceedings.
The suit alleges Stewart was thrown up over the car’s windshield and landed on the pavement by the driver’s side of the car, suffering multiple facial fractures and brain injury.
While the suit claims the accident was caused "solely" by the negligence of the driver, Aaron Miles Russell denies all the allegations.
In his statement of defence, Russell, an employee of the South Shore regional school board, says if Stewart did suffer any injuries "then such was sustained without any negligence on the part of the defendant." Indeed, the statement says if Stewart suffered any injuries, they were "caused by or contributed by his own negligence"
Stewart was a chartered accountant and senior partner with Lyle Tilley Davidson in Bridgewater and lived with his wife on Silver Point Road, just outside Lunenburg.
The statement of claim says Stewart was riding his bicycle west along Highway 3 in Centre at 7:30 a.m. on Sept. 3, 2009. He was wearing a helmet.
The suit says a silver 2002 Pontiac Grand AM travelling east drove into the path of Stewart’s bike as it turned into Centre Consolidated School. The car’s right front fender hit the bike, throwing Stewart into the car "and projecting him over the windshield of the vehicle and onto the pavement on the left driver’s side of the motor vehicle."
The claim says the collision occurred at the white line marking the shoulder of the road and that it was clear and sunny and the pavement was dry.
Among its claims, the suit says Russell failed to operate his car in a prudent manner, failed to yield the right-of-way to a bike before turning left, failed to try to avoid the collision, and failed to see Stewart "due to inattention or preoccupation."
Stewart suffered "grievous bodily injuries," the lawsuit says.
He is seeking unspecified damages, including compensation for lost income and medical expenses.
In his notice of defence, Russell alleges Stewart failed to try to avoid the collision by pulling his bike to the right.
He also alleges Stewart failed to wear adequate protective head gear, failed to operate his bike in a careful and prudent manner, operated his bicycle when his ability to do so was impaired and when there was poor visibility.
The statement of defence says if the court doesn’t agree with those claims, "the defendant pleads pure and simple or inevitable accident."
It also says if Stewart suffered any injuries, it didn’t result from the accident "but rather he suffers from disorders and conditions which pre-existed prior to, or are otherwise unrelated to, the accident."
Russell asks that the case be dismissed and that he be awarded costs.
A letter from Stewart’s doctor says he was "a healthy, fit individual," before the accident. As part of his treatment, he spent three months in the Nova Scotia Rehabilitation Centre before being placed in Peter’s Place, a home in LaHave for the brain injured.
Nova Scotia enacted Bill 93 last week requiring motorists to leave at least one metre between their vehicle and a cyclist.