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Filing a Cycling Injury Accident Claim

Posted by Kotak Law Office on June 22, 2016
Posted under Car Accidents, General Information

When weather permits, millions of Canadians ride their bikes to work or for recreation. Some do it for exercise or enjoyment, others for environmental reasons and some cycle as an alternative to traveling by car. Whatever the reason, cycling is a common activity in Ontario, particularly in urban centres and recreational areas that have designated bike trails.  Like other road users, cyclists are sometimes involved in accidents. Unfortunately, since cyclist tend not to wear much in the way of protective gear collisions can result in serious or catastrophic injury.

According to the Canadian Automobile Association (CAA), approximately 7,000 cyclists are injured every year.  The most common causes include: being hit by a car or truck; falling off the bicycle (sometimes due to an unsafe condition on a roadway/walkway); inattention by the rider; and colliding with another cyclist or motorist. Injuries related to cycling accidents can range from mild or moderate to serious, catastrophic, or sometimes fatal.  The most common injuries for cyclists are to the arms and legs, including broken bones, cuts and bruises; and head injuries, which may involve traumatic brain injury.

Unlike motor vehicles, bicycle owners do not require vehicle insurance, and a lack of insurance can sometimes be problematic when a cyclist is injured in an accident. Cyclists may be unaware that there are many circumstances under which a cyclist has the right to make a claim for compensation when they are hurt in an accident.  If injured in a cycling accident, you often have the option of filing an accident benefits claim and/or a making tort claim.

Claiming compensation for cycling injuries

As a cyclist, anytime you are injured in an accident involving another motor vehicle, you are entitled to make a claim for statutory accident benefits against either your own vehicle insurance policy, the insurance policy of the driver involved in the accident, or an immediate family member’s policy.  At the scene of the accident, an injured cyclist should obtain the car/truck driver’s name, address, insurance information and driver’s licence. If there were witnesses to your accident, it is a good idea to get their names and phone numbers as well, in the event that they are needed to substantiate your account of the circumstances leading up to the accident.  It can also be helpful to take pictures of the damage with a cell phone, if you are able, particularly in cases where there were no witnesses to your collision.

In the case of a hit-and-run accident, a cyclist can make a claim for benefits under the uninsured motorist coverage that’s available, by law, under every motor vehicle insurance policy.  If you or other witnesses are able to record all or some of the license plate number and/or get a good description of the vehicle, police may be able to identify the responsible driver. However, identifying the driver is often not possible, particularly when the cyclist is severely injured; even in the event that there were eyewitnesses to the incident, the primary focus is, as it should be, on getting emergency help for the accident victim.  If there is no vehicle insurance coverage of any kind available to a cyclist injured in a motor vehicle collision, they can file for compensation under Ontario’s Motor Vehicle Accident Claims Fund (MVACF), the ‘payor of last resort’ for uninsured accident victims.

If you intend to make a claim for statutory accident benefits, you must inform your insurer within seven days of your intent to make a claim.  The insurer will provide an application form that generally must be completed and filed within 30 days. Failure to do so in a timely fashion may result in a denial of your claim.

Cyclists, like any accident victims, also have the legal right to sue the ‘at fault’ party for damages.  A civil suit for damages can be made against the negligent driver who caused the cycling accident.  A civil suit can also be filed against the responsible property owner or facility, if there was an unsafe condition such as a damaged road surface or hazardous trail that caused the cycling accident and associated injuries. For example, sometimes cycling accidents result from poorly maintained infrastructure such as potholes or broken pavement, and a claim against the municipality may be successful if it can be shown that they had inadequate procedures in place for fixing the unsafe roadway. It is important to assess liability as soon as possible after an accidents since there are time limitations involved. For example, the municipality should be notified about the accident and unsafe conditions within ten days of the accident.

There is also a limitation period for filing a tort suit for damages: generally, the injured person must file a claim within two years.  This deadline is subject to the "discoverability rule" in that it starts running from when the claimant knew or ought to have known that they have a permanent and serious impairment of an important physical, psychological or mental function.

If you choose an experienced personal injury lawyer to represent you in a claim for compensation, they will ensure that you meet all the required timelines and that relevant medical testimony and evidence is gathered to support your claim.  The accident lawyers at Kotak Law can also best advise you on the optimal approach to obtaining full compensation for your injuries and losses, whether through an accident claim, civil suit, or both.

Cycling Injury Case: Johnson v. Milton (City)

A husband and wife were engaged in a recreational bicycle ride that ended in the man’s tragic death and serious injuries to his wife, Nelly Johnson. The couple, who were riding a tandem bicycle at the time, lost control when trying to navigate a sharp right turn and collided with a rock embankment at the Fourth Line in the City of Oakville.  In Johnson v. Milton (City), 2006, Mrs. Johnson sued the Municipality, claiming that the accident was caused by the non-repair of the Fourth Line Road. The judge ruled in the plaintiff’s favor and found that the road was in state of disrepair and hazardous to bicyclists, and that the City should have known of, and at least warned cyclists of the dangers. The court concluded that the City of Oakville was liable and awarded the plaintiff well over $ 1.3 Million in damages.  The total damages include compensation for the following losses: over $1 Million to Mrs. Johnson for the loss of income arising from her husband’s death; cost of future care for Mrs. Johnson; damages for the couple’s two sons for the loss of companionship and loss of support due to the death of their father; loss of past and future housekeeping expenses; and an award for pain and suffering.

While motorists and other road users have a duty of care to cyclists, cyclists must also abide by traffic laws and exercise safe practices to ensure their own safety on the road. Ontario’s recent Bill 31 requires cyclists to, among other things, have proper lights when travelling between dusk and dawn, as well as reflectors on their bicycles.  Failure to do so will result in a fine. Other safety practices cyclists should exercise include:

  • Always wear a helmet
  • Avoid cycling with headphones on, as it is difficult to hear and respond to oncoming vehicles
  • Ride with both hands on the handlebar, except when signalling a turn
  • Signal your turns
  • Keep both feet on the pedals
  • Always follow the rules of the road, including stopping at stop signs and red lights.

Some motorists blame cyclists for causing the bulk of vehicle-bike collisions.  However, a Canadian cycling coalition, Share The Road, published the results of a Toronto study involving 2,572 police collision reports that concludes that the most common causes of these types of collisions involve motorist errors.  The following circumstances were shown to cause the greatest number of cycling-motorist collisions, in this study:

  • Motorist fails to stop properly at a stop sign or red light
  • Motorist proceeds at an intersection, particularly by turning left or right, without first checking that it is safe to do so
  • Motorist passes unsafely, often too close to the cyclist
  • Motorist ‘doors’ the cyclist (i.e. opens their door in front of an oncoming cyclist)

Cycling should be an enjoyable, healthy and in particular, a safe experience for everyone, both young and old.  Unfortunately, when an unsafe road condition or careless driver causes a cycling accident, the injuries to the cyclist are more likely to be severe because there is little protection around a cyclist (in the same sense that a motorist is somewhat protected by the body of their vehicle).  As an injured cyclist, you have every right to seek compensation for losses resulting from your injuries.   At Kotak Law, our team of skilled personal injury lawyers are available to provide you with the best legal advice given the particulars of your case.  Call or visit us today for a free initial consultation.

KOTAK PERSONAL INJURY LAW/DISABILITY LAWYERS CAN HELP YOU
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Disclaimer: This article is intended to supply general information to the public. We make every effort to ensure the accuracy of this information. However, as laws change quickly, the reader should always ensure the accuracy and applicability of such information with respect to their particular case. The information contained in this article cannot replace a thorough and complete review of the reader's situation by competent legal counsel who has had an opportunity to review all of the facts.
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