In June 2016, Toronto Mayor John Tory announced the ‘Vision Zero’ plan to introduce infrastructure and policy changes in the City aimed at reducing the number of cycling and pedestrian deaths to zero by 2021. And, although the City of Toronto implemented a number of initiatives – including designated bike lanes, more biking lines on streets and lower speed limits – serious cycling accidents and cycling fatalities have not declined since 2016 and many, if not most, of these accidents were preventable.
The City of Toronto has been criticized for having too narrow a scope and not spending enough to make a substantial reduction in cycling deaths and injuries. Other cities around the world with similar plans have made a more substantial investment and have seen a much better result. Mayor Tory has asserted that the most important change that must happen if Toronto is to meet its target is that drivers must become more careful and vigilant, and all road users must be prepared to share the road and take due care.
Persons injured in a cycling accident due to a collision with an automobile have the same access to injury compensation as motor vehicle drivers and passengers. Anyone injured during the operation or use of a motor vehicle, including in a cyclist-vehicle collision, may claim statutory accident benefits (SABs) under their personal vehicle insurance policy (or a policy where they are included as a dependant) or alternatively, against the insurance policy for a driver involved in the cycling accident. And, if your injuries resulted from a negligent driving action, such as failing to yield, excessive speed or drunk driving, you are also entitled to sue the at fault driver for any losses resulting from your injury.
Toronto cyclist awarded Damages for Spinal Injury caused by Negligent Driver
St. Marthe v. O’Connor (2019) is a personal injury lawsuit that was commenced after a cyclist was struck by a car while riding to work on Dupont Street in Toronto, causing the cyclist to suffer a soft-tissue injury to his upper back. The collision occurred when a car driver exited from a gas station and pulled out to turn left, then struck the right side of the plaintiff’s bicycle knocking him to the ground. The driver said he first checked that traffic wasn’t coming from the opposite direction and had just turned to check traffic in the direction of the cyclist when his car collided with the cyclist, who he didn’t see coming.
The driver testified that, immediately after the accident, he noticed that the cyclist was a bit shaken up and asked him if he was hurt. The cyclist replied that his leg was injured and his pants were torn, but he declined an offer to phone for an ambulance and was picked up by his employer, who loaded the damaged bike onto his truck and then drove the cyclist home.
The cyclist (the plaintiff) and the driver (the defendant) did not disagree on how the accident happened and the latter admitted liability for the accident; however, the case went to trial to resolve the issues of damages and contributory liability, which were contested by the defendant.
The plaintiff’s injuries
Soon after laying down at his home after the accident, the plaintiff experienced back pain all along his right side, so he visited a hospital emergency department. The nurse noted no other visible injuries other than his back pain, and suggested that the plaintiff rest, take pain medication and return if his symptoms worsened. The plaintiff went back to work a week after the accident but was given lighter duties which enabled him to cope with his ongoing back pain.
The plaintiff had come to Canada from St. Lucia on a worker’s visa several years before the accident. After his visa expired, he stayed and continued to work at jobs requiring heavy labour, and was paid under the table. He was not eligible to receive OHIP due to his immigration status. This meant that his visits to the hospital and doctors were initially not covered by OHIP, until 2 ½ years after the accident when he became eligible.
After the accident, the plaintiff applied for no fault accident benefits from Aviva Insurance, and Aviva advised him to seek physiotherapy treatments. On this recommendation and due to continued back pain, he underwent regular physiotherapy and massage therapy treatments over many weeks but experienced only a minor improvement in his pain. He complained of a dull ache and stabbing pain when he attempted rotational movements in his thoracic region. He was unable to lie on his back, lift objects, and sit or stand for prolonged periods without pain. After about 6 months of treatment, the plaintiff found that his pain condition had improved so he discontinued regular treatment.
In the two years following the cycling accident, the plaintiff performed a variety of jobs, including as a camera operator, and he experienced a moderate amount of pain particularly when lifting. The plaintiff enjoyed construction work and, about 2 ½ years after the accident, he applied to work for a construction company where he helped with laying pipes, digging trenches and operating construction equipment. His foreman gave evidence that he was a very hard worker and well regarded, but during his first year it was apparent that the plaintiff was increasingly having problems performing heavy labour, particularly lifting. Eventually, the plaintiff told his foreman that he wasn’t capable of doing the work and because there were no light work tasks available at the company, he was laid off.
Due to the continued pain in his right upper back, the plaintiff saw another physiotherapist but Aviva denied the recommended treatment plan, so the plaintiff instead sought treatment from an orthopedic surgeon. The plaintiff complained that he felt a sharp and stabbing pain every day, and the pain sometimes woke him up when sleeping. Further, any type of repetitive activity using his back or arms increased his level of pain, and the pain prevented him from physical recreational activities and from performing essential work tasks. The treating surgeon diagnosed the plaintiff with right-sided recurrent thoracic muscle spasm, which he believed was caused by a whiplash type injury that occurred during the cycling accident. The surgeon recommended further assessments, including an MRI, as well as various treatments to alleviate the symptoms, including anti-inflammatory medication, physiotherapy and spine rehabilitation exercises.
The plaintiff acted on the surgeon’s advice and underwent regular physiotherapy and massage therapy. After some treatments, his physiotherapist wrote to his family doctor noting that the various therapies, including acupuncture and appropriate exercises, temporarily decreased his pain but did not result in any long-term improvements. This meant that the plaintiff was unable to perform physical labour and it was suggested that he seek another medical evaluation to determine if any other treatments may help.
Over the next few years, the plaintiff underwent many more medical assessments and a myriad of treatments, including assessments by several surgeons, a physiatrist, and an anaesthesiologist who specializes in chronic pain treatment at a respected Toronto chronic pain clinic. The medical experts reached the same conclusion: the plaintiff received temporary pain relief from some treatments, but the permanent injury to his thoracic spine caused pain and spasms whenever he attempted any sustained physical activity. As a result, the plaintiff cannot work in a job requiring physical labour.
During the years leading up to the trial, the plaintiff worked at various different jobs that didn’t involve heavy physical labour. He was also able to perform many of the normal tasks of daily living as long as he paced himself. However, some activities caused pain, discomfort or spasms, particularly heavier tasks such as lawn care.
Findings on Liability and the Amount of Owed Damages
The defendant argued that the plaintiff was contributorily negligent for his injuries because he was not wearing a helmet and didn’t take reasonable steps to avoid the crash. The judge did not give credence to the defendant’s first argument since there was no medical evidence that the plaintiff suffered a head injury or that he might not have been injured if he had been wearing a helmet. To the second argument, the judge stated that the onus was not on the plaintiff to avoid colliding with the defendant’s car (although the cyclist did slow down before approaching the exit) because the plaintiff “could reasonably assume that the defendant would comply with his legal duty to yield the right-of-way to him”. Accordingly, the judge ruled that the plaintiff was not contributorily negligent in causing his own injuries.
The judge concluded that the plaintiff suffered a serious and permanent injury to an important bodily function and he therefore meets the eligibility threshold for pain and suffering (general) damages. The judge further believed that, despite the pain and discomfort caused by some household chores, the plaintiff will likely continue to perform many of these activities and will also have help from his wife and children with some tasks.
The judge referred to the recommendations made by an occupational therapist who assessed the plaintiff at the request of Aviva Canada Inc, after the plaintiff applied for additional medical and rehabilitation benefits under an Aviva vehicle insurance policy in 2016. The therapist believed that the plaintiff would continue to benefit from physiotherapy and chronic pain management treatments, and also suggested the purchase of a snowblower and KT tape. Aviva paid the plaintiff’s medical/rehabilitation expenses but refused to pay for the latter purchases on the grounds that the snowblower and KT tape aren’t reasonable and necessary under the Statutory Benefits Schedule (SABS).
Since the plaintiff is normally responsible for snow removal and lawn care and these tasks may now cause an intolerable amount of pain to the plaintiff, the judge in the current case found that the purchase of a tractor for mowing and snow removal is a reasonable purchase and should be included in the awarded damages.
The judge ordered the defendant to pay the following damages to the plaintiff:
- general damages for pain and suffering: $32,016.67
- past loss of income: $80,990.
- future loss of income: $47,040
- future housekeeping and home maintenance expenses, which includes the cost of a Kubota tractor with attachments for lawn care and snow removal: $45,615.56
This case reminds us how a preventable event, such as a cycling accident, can, in a blink of an eye, have a significant long-term effect on our lives. And, given the plaintiff’s lack of access to OHIP coverage, his losses due to medical and rehabilitation expenses were higher than what would be true for most Canadians, so it was fortunate that he was able to claim statutory accident benefits in an earlier claim. This case was also unusual because lawsuits involving a cyclist injured by a negligent driver are typically settled out of court and resolved much sooner, while this case represents one of a small minority of negligence lawsuits that go to trial.
Sources:
https://www.thestar.com/news/gta/2018/05/16/nearly-three-years-since-toronto-announced-vision-zero-pedestrian-and-cyclist-deaths-are-not-declining.html
www.canlii.org/en/on/onsc/doc/2019/2019onsc1585/2019onsc1585.html?searchUrlHash=AAAAAQAfMjAxOSBjYXIgYWNjaWRlbnQgc3BpbmFsIGluanVyeQAAAAAB&resultIndex=4
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