Cycling may be the way of the future in urban areas but for now, automobiles – and the potential for conflict – still dominate the road. Cyclists and pedestrians, without the benefit of much or any protection, face a high risk of serious injury when coming into contact with an automobile. Sharing the road doesn’t guarantee mutual respect, but it does ensure everyone has access to one form or another of compensation after a serious accident.
If you’ve been injured in a collision with an automobile, you may be entitled to certain benefits under Ontario’s no-fault auto insurance system. The Statutory Accident Benefits Schedule applies equally to drivers, cyclists and pedestrians, although knowing whom to submit a claim to can be confusing.
Not surprisingly, cyclists and pedestrians often do not have auto insurance. If you are not insured under an automobile policy at the time of an accident with a motor vehicle, you would normally submit a claim for accident benefits through the driver’s insurer. If, however, you are covered under a family member’s automobile insurance policy, you would submit the claim to that insurer. Generally, you would be covered under a spouse’s policy or the policy of a family member for which you are principally dependant for financial support.
As with most motor vehicle accidents, accidents involving a cyclist or pedestrian can go beyond the no-fault benefits system and give rise to a tort action. Here, as a cyclist or pedestrian you would need to find evidence of negligence on the driver’s part; for example swerving into a designated bike lane, or opening the door of their vehicle without making sure it won’t harm a passersby. In the case of a motor vehicle accident involving a pedestrian, there is a presumption of negligence on the driver under the provisions of the Highway Traffic Act; this means that there is a reverse onus and the driver of the motor vehicle will have the burden of disproving negligence.
However, because bicycles have vehicle status under the Act, cyclists too have a duty under the Act and the common law to obey the rules of the road and not endanger the safety or property of other road users – even minor carelessness could be seen as contributory negligence and a legal wrench in the spokes of your claim. At Futerman Partners LLP, we have over 30 years of experience of handling the most complex motor vehicle accidents involving pedestrians and cyclists.