Bicycle accidents often occur at intersections, frequently in situations where the motorist turns while the cyclist doesn’t or the cyclist is rear-ended or hit by a parked car door opening. Motor vehicle collisions take up a disproportionate share of serious injuries of emergency ward cycling cases.
In Cycling Death Review, prepared by the Office of the Chief Coroner for Ontario, a substantial majority (78 percent) of fatal bicycling accidents are found to result from motor vehicle collisions. Almost all cycling related fatal accidents resulted from improper conduct of either the vehicle driver or cyclist or both. Only 27 percent of cyclists who died were wearing a helmet.
Where a driver is driving carelessly or is distracted and hits a cyclist, the courts may consider that driver to have been driving “negligently” and award damages to compensate the cyclist for costs such as personal care, medical treatment, lost wages and pain and suffering.
For example, in Pelletier v Her Majest the Queen, 2013 ONSC 6898 (CanLII) a young cyclist suffered what the court called a “prodigious siege” of misfortune. While biking home at night on his 28th birthday, Mr. Pelletier was struck by a police cruiser. While the police officer was found 60 percent at fault, Mr. Pelletier was found 40 percent at fault as he failed to have a light on his bike, was wearing dark clothing, lacked reflective surfaces, and he could have given the officer more time to respond. Mr. Pelletier was awarded over $3 million at trial, mostly for attendant care, after considering his own contribution to the risk.
At times, it is a poorly maintained road, trail, or property that is responsible for a cyclist’s injuries. Cities and towns can be forced to pay for injuries suffered because of poorly maintained roads, just as “occupiers,” owners or leasers of private property can be held liable for injuries suffered by visitors on their premises if they do not maintain them well.
Labanowicz v Fort Erie (Town), 2017 ONSC 630 (CanLII) illustrates an example of municipal liability for cyclists, and how damages can work where there is a concussion - an injury particularly relevant to cyclists. In this case, Ms. Labanowicz was thrown from her bicycle on a trail just outside of Fort Erie and was resultantly knocked unconscious. The injury was caused when her front tire struck an exposed metal posting that is usually used to contain wooded posts to keep motor traffic out.
The concussion caused Ms. Labonowicz’ inability to return to work due to cognitive disabilities. Ms. Labonowicz’ ability to manage her own affairs was also impacted by her cognitive deficits. Even at trial, she struggled to give her evidence. Ms. Labonowicz was awarded $737,339.72 for her lost income claim.
This case makes a powerful statement about how serious concussions can be and the economic losses they can result in, over and above their physical consequences. Even though Ms. Labonowicz was not wearing a helmet, in this case, the judge took the accident to have been the full responsibility of the township.
Ontario’s Negligence Act allows the courts to determine the degree to which someone is at fault (apportionment), including the plaintiff (contributory negligence), and then assign a percentage of the total damages to the respective parties.
In a hypothetical case, consider a car backing out of a driveway without looking while a cyclist is fiddling with his phone, all on a poorly maintained road. The cyclist sees the driver too late and swerves out of the way, but has not given enough time to react and swerves, heading straight into a pothole that otherwise could have been avoided. The cyclist is thrown off his bicycle and breaks his arm. If the cyclist were to sue both the town and the car, the court might divide the responsibility for the damages between them at, say 50 percent to the driver, 35 percent to the cyclist, and 15 percent to the municipality.
If you or a person close to you is injured in a motor vehicle accident, our Whitby or Oshawa lawyers can meet with you to see you qualify for compensation. Even if the fault clearly lies with the driver or the town, the amount of your compensation may depend on your lawyer’s abilities and the willingness of the parties to negotiate a reasonable settlement instead of going to court. Contact us for an experienced personal injury lawyer in Whitby or Oshawa at 905-579-5302.