In densely populated cities like Toronto, cycling provides a practical, healthy and environmentally friendly mode of transportation. Cycling has numerous health benefits, including increased cardiovascular fitness, improved joint mobility and decreased stress levels. [1] In addition to these health benefits, individuals who commute by cycling help reduce noise pollution, emissions, and road congestion. [2]
Cycling, not unlike many other elements of urban life, carries risk. Cyclists are extremely vulnerable in the event of a collision with a motor vehicle. An estimated 74 cyclists per year are killed by a motor vehicle crash in Canada.[3] Commons sources of cycling collisions include:
- Motorist driving out of a controlled intersection;
- Motorist overtaking a cyclist;
- Motorist opening a door in front of a cyclist;
- Motorist making a left turn, facing a cyclist; and
- Motorist turning right in front of a cyclist.[4]
In 2012, a report was prepared by the office of the Chief Coroner for Ontario, which provided an in-depth review of all accidental cycling deaths in Ontario from January 1, 2006 to December 31, 2010. Key findings of the report included:
- 86% of those killed (of the cases studied) while cycling were male;
- The peak age for cycling deaths was 45-54 years;
- The peak months for cycling fatalities were July, August and September;
- The vast majority of cycling deaths occurred during clear weather, on dry roads, with good visibility;
- More than half of the fatal cycling collisions occurred in daylight conditions;
- The peak time for fatal collisions occurred between 8:00 pm and 10:00 p.m.;
- Only 27% of those who died as the result of a cycling collision were wearing a helmet;
- Those cyclists whose cause of death included a head injury were three times less likely to be wearing a helmet than those who died of other types of injuries.[5]
In law, there are two separate cases that you may bring in the event of cycling-motor vehicle accident. The first is a tort case, and the second is a claim for accident benefits, through an auto insurance policy.
What is a tort case?
A tort case, or a personal injury lawsuit, is a claim for damages. When a tort claim is pursued, a lawsuit is initiated by filing originating documents with the appropriate court. Regardless of the type of injury or accident, in any tort claim there are four elements which must be proven:
- Duty of Care – An individual bringing the lawsuit must show that the person or entity they are suing owed a duty of care;
- Breach of duty of care – The individual bringing the lawsuit must show that the person or entity they are suing, breached the duty of care.
- Causation – The individual suing most show they suffered a loss as result of the actions (or omissions) of the person/entity they are suing.
- Injury - An individual must show that they suffered injuries because of an accident.
The aim of the tort claim is to put the individual back in the position they were, had the injury or loss not occurred. In a lawsuit, you can claim for damages for pain and suffering, out of pocket expenses, loss of income and health care costs.
In Ontario, they are further legal considerations when bringing a tort lawsuit that involves a motor vehicle accident, which exist by operation of Section 267.5 of the Insurance Act. In Ontario, if you are a cyclist involved in a motor vehicle accident, in order to make a claim for general damages, your injuries must be considered a “permanent, serious disfigurement or a permanent serious impairment of an important physical, mental or psychological function”. While a discussion of this legal provision is beyond the scope of this blog post, it is a necessary consideration when bringing a tort lawsuit.
What are Accident Benefits?
In contrast to a tort claim, a claim for accident benefits is a contractual relationship, between an individual and a car insurance company. If you do not have car insurance, you may be eligible to make a claim for accident benefits through the insurer of the other driver who stuck you or through the Motor Vehicle Claims Fund.
Accident benefits are available to anyone who is involved in a car accident, including cyclists, regardless of who was responsible or at fault for the accident.
In Ontario, the legislative authority for accident benefits is Regulation 34/10, the Statutory Accident Benefits Schedule. The purpose of accident benefits it provide immediate financial and rehabilitative support to individuals who have been injured from a car accident.
Under the Statutory Accident Benefits Schedule, an injured cyclist may be entitled to the following benefits:
- Income Replacement: 70% of your gross income up to a maximum of $400.00 per week for those employed prior to the accident;
- Non-Earner: $185.00 per week for individuals who have not been working in the 26 to 52 weeks prior to the accident;
- Medical and Rehabilitation: from $3,500.00 to $1,000,000.00 (financial entitlement is dependent upon the severity of the injury);
- Death Benefits: $25,000.00 for spouses, $10,000.00 for dependents, and up to $6,000.00 in funeral cost reimbursement;
- Housekeeping: up to $100.00 per week only available to those who are deemed catastrophically impaired;
- Other benefits: loss of educational expenses, loss of prescription glasses, and travel expenses for family members that assist with recovery.
Eligibility to benefits may vary depending on your policy or coverage that was purchased. It is important to review the terms of your insurance policy to confirm your full entitlement to accident benefits.
Cycling and Ontario’s Highway Traffic Act
Under the Highway Traffic Act, a bicycle is a considered a vehicle, similar to a car or truck. As a cyclist you must obey all traffic laws and signals. It is important to note that as per section 144(29) of the Highway Traffic Act, cyclists are not permitted to operate or ride their bike across or within a designated crosswalk.[6]
Required Equipment
Pursuant to the Highway Traffic Act, cyclists must also carry the following equipment on their bicycles:
- bell or horn
- lights and reflectors:
- a white light mounted on front of your bike; and
- a red light or reflector on the back at night.
- reflective tape:
- white reflective tape on the front forks; and
- red reflective tape on the rear forks.[7]
Wearing a Helmet
In Ontario, a bicycle helmet is strongly recommended but not legally required if an individual is over the age of 18. Cyclists under the age of 18 must wear a helmet. For children under the age of 16, parents or guardians must ensure that they are wearing a helmet.[8]
In the context of a tort lawsuit, if you do not wear a helmet and sustain injuries to your head, you may be found contributorily negligent for your injuries. In law, contributory negligence considers the degree or extent to which an individual is responsible for their injuries. Where a helmet is not worn, and an individual does not sustain injuries to their head, the courts have typically not made findings of contributory negligence. In Repic v Hamilton (City), the court declined to assign any contributory negligence to the plaintiff, when there was no evidence that a helmet would have lessened the extent of his injuries.[9]
How to protect yourself
While operators of motor vehicles must take care to avoid collisions with cyclists, there a few things cyclists can do to help avoid injury:
- Wear a helmet;
- Wear reflective clothing at night;
- Install a bell on your handlebars; and
- Do not bike through crosswalks.
If you or a loved one is involved in a cycling collision with a motor vehicle, it is important to be aware of the legal recourse that is available. Please contact our experienced lawyers at Bogoroch & Associates LLP for a free consultation.
Bogoroch & Associates LLP is experienced in all aspects of personal injury and medical malpractice litigation. We have the confidence and skill to advance your motor vehicle accident or medical malpractice claim to settlement or trial while helping you navigate the complex medical, legal, and insurance issues.
Our experience, commitment to excellence, and reputation have long been recognized. Our founding partner, Richard M. Bogoroch, has been recognized as a leading personal injury lawyer by The Canadian Legal Lexpert Directory and by The Best Lawyers in Canada. The Canadian Legal Lexpert Directory and The Best Lawyers in Canada are two highly regarded lawyer rating publications.
If you or your loved one has been injured in an accident or believes that you are a victim of malpractice or negligence, reach out to a personal injury or medical malpractice lawyer to understand if you too have a claim. Please contact any of our personal injury lawyers at Bogoroch & Associates LLP for a free consultation.
Contact a personal injury lawyer near me by calling 1-866-599-1700 or visit our Contact page for all inquiries.
[1] https://www.betterhealth.vic.gov.au/health/healthyliving/cycling-health-benefits
[2] https://www150.statcan.gc.ca/n1/pub/82-003-x/2017004/article/14788-eng.htm
[3] https://www150.statcan.gc.ca/n1/pub/82-003-x/2017004/article/14788-eng.htm
[4] http://www.velomondial.net/velomondiall2000/PDF/TOMLINSO.PDF
[5] https://www.publicsafety.gc.ca/lbrr/archives/cnmcs-plcng/cn29871-eng.pdf
[6] Highway Traffic Act, R.S.O. 1990, c. H.8, s. 144(29).
[7] Highway Traffic Act, R.S.O. 1990, c. H.8, ss 61(17) and 75(5).
[8] https://www.ontario.ca/page/bicycle-safety#:~:text=By%20law%2C%20cyclists%20under%20the,carrier%20or%20a%20bicycle%20trailer.
[9] Repic v Hamilton (City), 2009 CanLII 60673 (ON SC) at para 43. As affirmed by Repic v Hamilton (City), 2011 ONCA 443.
