Pedestrians and cyclists are vulnerable road users. Although sidewalks and dedicated bicycle lanes, of course, help to some extent, pedestrians and cyclists are particularly vulnerable to suffering serious injuries as a result of collisions with motor vehicles.
In recognition, the law has been designed to protect pedestrians and cyclists. This article looks at the law requiring the driver to prove they were not at fault for causing injury. We also look at a recent Ontario Superior Court of Justice decision in which a cyclist claimed compensation after a car collided with her bicycle.
Reverse onus of disproving negligence when person injured by motor vehicle
As we have reported previously, normally, the plaintiff in a negligence claim needs to prove that the defendant owed them a duty of care, the defendant breached the standard of care and that the breach caused the injury suffered in order to claim compensation.
However, the Highway Traffic Act modifies these requirements where a motor vehicle impacts a pedestrian or bicycle on a public roadway. According to section 193, when a person sustains an injury by reason of a motor vehicle accident, the onus is upon the driver of the motor vehicle to prove that the injury did not arise through their negligence.
This is commonly referred to as the reverse onus, as the burden falls on the defendant (driver) rather than the plaintiff (pedestrian or cyclist).
Driver needs to prove that there was no negligence
As a result of this provision, pedestrian or cyclist only needs to show that they were injured in an accident. The driver needs to prove that there was no negligence or misconduct on their part. It is possible that the driver is not at fault and can show this; for example, the pedestrian could have been distracted and unaware of their surroundings due to using a cell phone or noise-cancelling headphones.
Showing that the pedestrian or cyclist’s injury was caused in part by their own contributory negligence is insufficient. However, if the plaintiff caused or contributed in part to the accident, this may reduce the defendant driver’s liability to an extent.
Plaintiff cycles home from her office in Toronto
In Sanson v Paterson, a woman was injured while on her bicycle in a collision with a motor vehicle.
After attending her office in Toronto morning, she headed home via College Street. At the intersection with Dufferin Street, she came to a stop at the traffic lights. She was in the right-hand lane, marked with painted images of bicycles and “sharrows,” chevron-like images with pointed ends directed forward. This indicates that the lane is shared by both bicycles and motor vehicles, which warns drivers and cyclists of the other’s presence.
Plaintiff hit from behind by a car, throwing her to the pavement
When the light turned green, she began to pedal through the intersection. A car clipped her bicycle from behind, and then she felt the car strike again, which threw her from the seat. She hit the pavement with both her chin and forehead. Thankfully, she was wearing a helmet.
The woman continued to cycle home after exchanging information with the driver. She then called 911. A police officer later arrived and told her to contact the driver’s insurer.
According to the driver of the car, the plaintiff was not stopped in the middle of the lane waiting for the light but was instead right up against the curb. As a result, he pulled up next to her, about a metre to the right. He started driving when the light turned green, at which point the plaintiff bumped into his passenger-side door.
He called his insurer and also attended the local police station to provide a written statement of the events.
Plaintiff suffered injuries and symptoms caused by the collision
The 64-year-old plaintiff testified that she experienced pain, stiffness and headaches. She argued that a mild traumatic brain injury had left her unable to return to work and severely curtailed her activities and social life.
The defendant argued that the plaintiff’s injuries had been exaggerated.
Defendant failed to satisfy the reverse onus and was found responsible for the collision
Justice Black placed emphasis on the evidence of the defendant, who explained that he was focused on the need to change lanes after the intersection. His Honour said:
“[The defendant] agreed that he was aware that the cyclist was near him (either next to him, on his recollection, or in front of him, on [the plaintiff’s] version). However, after the light changed and as he was accelerating into the intersection, he did not pay any attention to or even glance at the cyclist to determine her position and to ensure it was safe for him to accelerate forward into the intersection.”
His Honour found that the defendant driver failed to satisfy the reverse onus by failing to look at the plaintiff once the light changed in order to ensure he could pass her at the intersection. Justice Black found the defendant wholly responsible.
His Honour found that the collision caused the plaintiff’s injuries and awarded the plaintiff compensation for non-pecuniary general damages, loss of income, out-of-pocket expenditures and future care.
Contact Tierney Stauffer LLP in Ottawa, Kingston, Cornwall, Arnprior & North Bay for Representation with Pedestrian and Cyclist Accident Claims
Pedestrians and cyclists are vulnerable when using roads. If you have been injured in an accident as a pedestrian or cyclist, you may be entitled to compensation to cover things, including medical expenses and lost wages. The experienced personal injury lawyers at Tierney Stauffer LLP will guide you through the process of bringing a personal injury claim. We recognize that all accident victims are different, so let us give you the customized attention needed to bring about a satisfactory resolution after your accident injury. Call us at 1-888-799-8057 or contact us online to set up a free consultation.