Bicycle and Pedestrian Accidents
Bicycle and Pedestrian Accidents
Bicyclists and pedestrians have the same right to the roadways as motorists and in many instances have additional protections. Motorists who unlawfully turn into bike lanes, who fail to give a bicyclist enough space, or who neglect to stop or notice pedestrians legally crossing the roadways are liable for the often catastrophic injuries and damages caused by their negligence. Retain a Markham personal injury lawyer from Affinity Law to represent your interests if you have a bicycle or pedestrian injury claim.
Bicycles are a wonderful and healthy mode of transportation. However, if you ride on city or suburban streets, you should be as conspicuous as possible to motorists and obey all traffic laws since you are obligated to do so. Wearing colorful clothing, having lights on your bike for night riding, staying within marked bike lanes and obeying the traffic laws can reduce your risk of being in an accident.
Also, be aware of the common causes of bicycle accidents by motorists:
- Dooring (motorist opens door in pathway of bicyclist)
- Driving in a bike lane
- Passing a cyclist too closely
- Failure to yield to bike at an intersection
- Distracted driver
- Impaired driver
- Turning in front of cyclist at light or stop sign
- Poorly designed bike lanes
Other factors that lead to accident are road and weather conditions and a defect in the bike that affects the tire or it braking.
Drivers should maintain at least 3-feet of space between them and bicyclists and not drive in bike lanes unless making a turn. Before entering a bike lane, the motorist should signal and ensure that no bicyclists are at risk. Motorists in parked vehicles also have a duty to safely open their car doors so as not to interfere with an approaching cyclist.
In some cases, a poorly maintained road surface or defectively designed bike lane could leave a municipality liable for a cyclist’s injuries. If the bicycle was negligently manufactured or serviced, the manufacturer or the bike shop that performed the service could also be found responsible. These cases are usually brought if the injuries are severe and permanent since insurers for these parties will vigorously defend their insureds, and negligence can be difficult to prove. Consult a Markham bicycle accident lawyer from Affinity Law if you were injured in a bicycle accident from the fault of another party.
Proof of Negligence
Typically, in a third party injury claim, the onus is on the plaintiff or injured party to prove that another party’s negligent conduct caused the accident. However, where a bicyclist or pedestrian is the one injured in an accident with a motor vehicle, there is a “reverse onus” pursuant to Section 193(1) of the Highway Traffic Act. This section presumes that the motorist was negligent so that the burden of proof is upon the motorists to demonstrate that they acted reasonably. If they present evidence of their reasonable conduct, then the claimant must present evidence that rebuts it. In many bike accident cases, liability or the degree of fault is challenged so that having an experienced Markham bicycle accident lawyer from Affinity Law is essential so that you can pursue a third-party claim against the responsible motorist.
Currently, only minors are required to wear bicycle helmets in Ontario. But you could be found comparatively negligent in an accident even if it was caused by a motorist if you suffered a head injury that evidence shows could have been prevented or minimized if you had worn a helmet. In such cases, your compensation would be decreased by your own degree of fault.
Accident Benefits are available to injured parties in motor vehicle accidents regardless of who was at fault. Injured bike riders can look to their own auto policies for benefits, or to that of a household member such as a parent who possesses a policy. If no policy is available, the injured rider can obtain benefits from the involved vehicle’s insured. If the motorist was uninsured, then the last resort for benefits is through the Motor Vehicle Accident Claims Fund.
A claimant needs to notify the insurer from whom benefits are sought within 7-days of the accident. You will receive an Application from the insurer for which you have 30-days to complete and submit. The form Includes a Disability Certificate to be completed by a health provider along with a Treatment Plan if you are unable to return to work or to normal or household activities for any period of time.
Your Accident Benefits include:
- Income replacement (up to the first 104 weeks if employed and you suffered a substantial inability to perform your work. You may receive more than 104 weeks if you are totally unable to perform work). The maximum payable is $400/week but you may receive more if you paid a higher premium.
- Non-earner benefit of $185 per week if you suffered a total inability to carry on a normal life. Payments begin after 26-weeks have passed. You can receive $329 per week if a student or you had completed education in the year before the accident but were not yet employed.
- Caregiver benefits if you were a caregiver at home and suffered a catastrophic injury, and you were not being paid.
- Medical and rehabilitation if not covered by OHIP or other health and disability plan. You can receive up to $50K over 10-years, but only $3500 if it is a minor injury. In a catastrophic case, you may obtain up to $1M over your lifetime.
- Housekeeping benefit in catastrophic injury cases or if you are substantially unable to perform household services that you actually had performed for up to $100 per week.
Third Party Claims
As an injured rider receiving Accident Benefits, you can also pursue compensation against the responsible party for pain and suffering as well as for lost income and future medical expenses that were not covered under your Accident Benefits. To have a valid third-party claim, your injury must meet a threshold standard, which is that your injury be a permanent serious impairment of an important physical, mental or psychological function, or a serious and permanent disfigurement.
A $30,000 deductible remains with the responsible motorist’s insurer if your award for pain and suffering is less than $100,000.
Your claim for additional compensation if you meet the threshold injury standard may include the following damages:
- Pain and suffering
- Diminished quality or enjoyment of life
- Past and future medical expenses
- Psychological impairment
- Past and future income loss
- Family Law Act claim by close family members
You have 120-days from the date of the accident to notify the other party of your intention to claim damages, and 2-years from the accident to file your claim in court.
A pedestrian is any person on foot, a scooter, long board, wheelchair or bicyclist. When lawfully crossing the street, a pedestrian who is struck by a vehicle is presumed under the law to have had the right of way and fault is ascribed to the motorist pursuant to Section 193 of the Ontario Highway Traffic Act, referred to as the “reverse onus’. In other words, the motorist has the burden of proving that he/she was not negligent or responsible for causing the accident. In the typical injury case, the plaintiff or victim has the burden of proving the defendant’s negligence caused the accident. Once the pedestrian demonstrates that she was hit by the motorist, the driver has to prove that he acted lawfully and reasonably under the circumstances.
Any age group is vulnerable to motorists when crossing the street or being on the roadway attending a disabled vehicle or for any other reason, though seniors 65 and older seem particularly at risk probably due to moving more slowly across the street or in not being aware of approaching cars from poor eyesight or hearing. They may also be more likely to cross against the light.
Injuries in a pedestrian accident can be catastrophic, even if the impact was slight since you can be thrown to the pavement and suffer a traumatic head injury. Other injuries include:
- Broken limbs
- Fractured pelvis
- Internal organ injuries
- Spinal injuries, including paralysis
Factors in Pedestrian Accidents
The factors that lead to pedestrian accidents are numerous:
- Distraction—cell phone use by driver or pedestrian
- Poorly lit or illuminated intersections or roadways
- Motorist turning at intersection and not seeing pedestrian in crosswalk
- Failing to yield to pedestrian
- Passing car that had stopped to allow pedestrian to cross
- Failing to stop at signal light or stop sign
A motorist might argue that the pedestrian was at fault for causing his own injuries. If he can prove the pedestrian was crossing outside of a marked or unmarked crosswalk, was impaired, distracted, or created a dangerous condition such as running into the street, then a court might determine that there is no liability on the part of the motorist or impose a degree of comparative liability on the pedestrian. If the pedestrian was jaywalking, the court will want to determine if the person did not keep a proper lookout before crossing, or if the motorist should have seen the pedestrian in any event and avoided the accident.
If the pedestrian is found to be partly at fault, the damages awarded would be reduced by his degree of comparative fault. Ontario’s comparative negligence law can be characterized as a “pure” standard. In the US, many states have a modified comparative negligence standard where the plaintiff’s own negligence cannot be more than 49% or the claim will be dismissed. In Ontario, any degree of comparative negligence will not be fatal to an injury claim, even if it is 99%. It only reduces the damages awarded by the plaintiff’s percentage of fault.
Compensation in Pedestrian Injury Claims
A pedestrian injured by a motorist can collect Accident Benefits from their own auto liability police if they have one, or from the at-fault driver’s policy. All auto liability policies in Ontario are required to have these benefits.
You can collect non-pecuniary damages, or pain and suffering, if your injury was serious and permanent, a serious disfigurement or loss of a limb, or a permanent serious impairment of an important physical, mental or psychological function
A claim for Accident Benefits must be submitted within 30-days of the accident. Eligible recipients may recover the following benefits:
- Income replacement –Pays up to $400 weekly if your injuries prevented you from working. You can purchase optional benefits for increased payments up to $1,000 per week.
- Non-earners—Compensates you for up to 26-weeks if disabled from engaging in normal daily activities at $185 per week
- Caregiver—If you are the main caregiver for a dependent and unable to no longer care for them, you can be compensated for hiring someone else. This only covers certain injuries but you can purchase optional coverage that includes all injuries
- Medical and rehabilitation—Pays for reasonable and necessary expenses not covered by a government or supplementary health plan
- Attendant care—Expenses for hiring a caregiver for yourself due to the injuries caused by the accident
- Other—Covers possible lost educational costs, housekeeping and home maintenance expenses, and items damaged in the vehicle
- Death and funeral expenses–$25,000 is paid to your spouse, $10,000 to each dependent, and up to $6,000 for funeral costs. Optional coverage can increase these amounts to $50,000 for your spouse, $20,000 to each dependent, and up to $8,000 for funeral costs.
In serious cases, your insurer will often attempt to settle your Accident Benefits claim though a settlement cannot be offered until one year from the date of the accident. Once you settle, you can no longer claim these benefits. A settlement can also affect any other claim for additional compensation that you may bring against the motorist who struck you. Be sure to consult with a Markham pedestrian injury lawyer from Affinity Law if you have been offered a settlement.
Limits on Medical Payments
Medical payments are limited to $3,500 for care not covered by OHIP and if your injuries are deemed “minor” by the insurer. For injuries between “minor” and “catastrophic,” you may claim medical benefits up to $50,000. You are covered for up to $1M for catastrophic injuries such as loss of a limb, vision, paraplegia, or traumatic brain damage.
Pain and Suffering
Under Canadian law, you are limited in the amount of non-pecuniary damages you can receive, which includes pain and suffering or your diminished ability to enjoy life as you did pre-injury. The cap on these damages is raised annually per the rate of inflation and is currently at $380,912.00. Only the most egregious injuries are awarded the maximum amount.
There is no limit on pecuniary or economic damages that covers past and future loss of earnings, medical expenses and care.
The law also imposes a deductible on injury awards in car accident cases. As of 2019, there is a deductible of $38,818.97 on awards less than $129,395.49. The deductible does not apply for awards exceeding that amount. These amounts are adjusted yearly for inflation.
Hit and Run Accidents
Unfortunately, a high number of pedestrian accidents result in the motorist fleeing the scene without stopping to offer assistance, call for help, or to provide the required identification. Many drivers flee for a variety of reasons:
- They are on probation for a prior criminal offense
- Intoxication or other impairment
- Driving a stolen vehicle
- Unlicensed or driving on a suspended license
- Possess or transporting contraband
- Undocumented immigrant
- Unaware of accident
If the driver remains unidentified, the pedestrian can still claim Accident Benefits under the unidentified or uninsured provision of their own auto liability policy or one that covers them. If they do not have a policy, they can still collect benefits under the Motor Vehicle Accident Claims Fund (MVACF). They may still bring a tort claim against the MVACF as well. Third party claims brought under the unidentified or uninsured provision or against the MVACF are limited to $200,000.
Pedestrian accidents are not always clear-cut cases of liability. Also, there are often other issues such as collection of Accident Benefits and bringing a claim against the responsible motorist or an uninsured claim. To be sure you are compensated to the fullest extent possible, consult and retain a Markham pedestrian accident lawyer from Affinity Law.
Call us today for a free consultation at (647) 846-2037