Drivers are Liable for Car Accidents caused by Distraction

In the fall of 2015, a woman was hit by a car and sustained severe injuries while she was riding her motorcycle near Peterborough.  The injured woman and mother of three, Linda Brown, alleges that the driver who struck her was distracted at the time.  Ms. Brown is actively trying to raise awareness of the dangers of distracted driving, at the same time as she is recovering from the fifth of five needed operations, after which she hopes to be able to walk again.

Linda Brown is particularly focusing her efforts on educating young people, including those who attend Sunnybrook Hospital’s Prevent Alcohol and Risk-Related Trauma in Youth program, which is aimed at showing teenagers the effects of impaired driving.   Ms. Brown told CTV Toronto that her time spent in a trauma ward was a sad reminder of how many people are injured or killed due to a moment of inattention while driving.  The thought that someone lost a life just because a driver couldn’t wait to reply to a text message is disturbing and unfortunately not uncommon.

Several Canadian studies conclude that distracted driving has overtaken impaired driving as the leading cause of fatalities resulting from car accidents but often, statistics do not take into account the fact that, in many cases, police cannot know for certain that distraction was a factor in a collision.  The Ontario Ministry of Transportation reports that drivers using cell phones are four times more likely to be involved in a car accident than those who keep their attention on the road.  When we take our eyes off the road for two seconds, our risk of crashing doubles.  CAA’s figures are even more disturbing: CAA suggests that driving while texting increases the risk of a collision or near collision by 23 times.

Effective September 1, 2015, it became illegal in Ontario for drivers to text, talk, dial or email using hand-held devices while driving.  In addition to being against Ontario law to hold a communication device while driving, drivers are not permitted to look at a display screen that is not related to their driving (which therefore excludes GPS devices).   Although only hand-held devices are currently illegal while driving in Ontario, drivers need to be aware that there is persuasive research that demonstrates that any phone conversations while driving, including via hands-free devices, serve as a distraction and increase the risk of a car accident and potential injury to yourself and other road users.

The following hand-held devices are not permitted while driving in Ontario.

  • Cell and smart phones
  • Laptops
  • IPods
  • GPS and MP3 players
  • DVD players

Drivers should be aware that they can be charged with the offence of driving with a hand-held communication device even if they are simply holding their phone and not actively engaged in a conversation or texting.  In a 2015 trial, R. v. Fabian, a man defended himself on this charge under the Highway Traffic Act, after a police officer observed him holding his phone while driving in Oakville and subsequently charged him with the related offence.  The court noted that the offence of driving with a hand-held communication device may be categorized as a strict or absolute liability offence, and if a defendant is found guilty of this charge, negligence is assumed.  However, if a defendant can prove that they took all reasonable care while committing the offence, they may be able to avoid liability; on the other hand, if care cannot be demonstrated, then the accused has absolute liability. In this particular case, the Crown proved their case beyond reasonable doubt and the defendant, Mr. Fabian, was found guilty of the charge.  It should be noted that Mr. Fabian was judged to have ‘not taken reasonable care’ due to the fact that he was holding his phone, even though the arresting officer did not observe any other careless driving or failure to obey Oakville traffic laws on the part of the defendant.

When is it legal to use a hand-held device while in your vehicle?

  • When your vehicle is pulled off a roadway or highway, or lawfully parked.
  • You are making an emergency (911) call.
  • When communicating on a two-way, mobile or CB radio
  • Emergency services personnel such as police officers and firemen may use hand-held devices and display screens, while performing their duties.

Even when the use of a cell phone is deemed necessary due to an emergency situation, drivers are still expected to pull over to the side of the road if at all possible to complete the call.  However, if the emergency requires an immediate call while driving, the call should be as brief as possible.

Although such activities as the use of hands-free devices and drinking a coffee while driving are legal, if any type of distraction causes an accident, a driver can be held liable for any damages and injuries that result from their moment of inattention.  According to CAA, the most common driver distractions are, in order of importance:

  • Outside objects, persons or events, which may include other road users, construction sites, collisions and scenery
  • Adjusting radio, CD, etc.
  • Other passengers, generally with whom the driver is conversing
  • Something moving around in the car, such as children or pets
  • Using any device, including a cell phone
  • Adjusting vehicle heat or air conditioning
  • Eating, drinking or smoking

An accident that happens in a moment of inattention can have catastrophic consequences for the driver, passengers and other road users.  Pedestrians and cyclists are particularly vulnerable to being struck by a distracted driver and correspondingly, driver inattention is a leading cause of pedestrian and cyclist fatalities.   The solution to the problem of distracted driving is an obvious one; every time a driver gets behind the wheel, they need to make a conscious decision not to let anything get in the way of their concentration on the road.  One of the easiest circumstances to control is to pull over to the side of the road if it is necessary to use the phone, discipline children, locate a needed object in your car, or to engage in any other action that takes your attention away from the road.

If you or a loved one were a victim of a car accident due to distracted driving or another careless act, you have two options for obtaining compensation for injuries.  All Ontario drivers are eligible for ‘no fault’ accident benefits under their automobile insurance policy. Uninsured pedestrians, cyclists or passengers involved in a car accident may make a claim against another family member’s policy or against the at fault driver.  Car accident victims are also entitled to sue the negligent driver for damages, which includes any losses that they experienced as a result of the accident.   Seriously injured persons may be eligible for compensation for loss of income during their recovery, medical and rehabilitation expenses, and pain and suffering.  To find out more about your legal rights in the aftermath of a car accident, call the experienced lawyers at Kotak Personal Injury Law.


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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.