Ontario cyclists and pedestrians have the same rights and entitlements as drivers if they are hurt in a car accident. In fact, injured cyclists and pedestrians have a legal advantage when it comes to making a negligence claim against a vehicle driver. Let’s explore those legal rights and the reverse onus that benefits pedestrians and cyclists when claiming personal injury compensation.
Legal rights of injured cyclists and pedestrians
A cyclist or pedestrian who has been hurt in a motor vehicle accident may have the legal right to claim compensation from two sources: an accident benefits claim and a personal injury lawsuit.
Accident benefits claim
Accident benefits are available to any person hurt in an automobile accident, regardless of who was at fault—and even if the injured person was 100% at fault. No-fault accident benefits, which are also known as Statutory Accident Benefits or “SABS” in Ontario, help to cover:
Out-of-pocket medical expenses (psychological treatments, physiotherapy, chiropractic treatments, massage therapy, exercise therapy and programs, gym memberships, etc.);
Housekeeping expenses;
Childcare expenses;
Income replacement for wages lost as a result of the accident injuries; and
Other costs associated with injuries sustained in the accident.
A pedestrian or cyclist injured in a motor vehicle accident has the right to make an accident benefits claim through their own auto insurance policy. If they don’t have auto insurance of their own, an injured cyclist or pedestrian has the legal right to make an accident benefits claim through the auto insurance policy of the driver involved in the accident.
To make a claim for accident benefits, the insurance company must be notified within seven days of the accident. The insurance company will then provide an Application for Accident Benefits form which must be completed and returned within 30 days.
Personal injury lawsuit
If the accident in question was caused in whole or in part by someone else’s fault, the injured pedestrian or cyclist has the legal right to sue the wrongdoer for compensation. This is known as a tort claim or negligence claim. Tort claims may cover items not covered under an accident benefits claim, including:
Damages for pain and suffering;
Loss of past and future income, loss of competitive advantage, promotion and opportunity, reduction of working career;
Medical and caregiver expenses;
Loss of housekeeping and home maintenance; and
Loss of income beyond the amounts covered by the insurer.
There are deadlines that must be met to bring a personal injury claim, or the right to sue may be lost. In most cases, a tort claim must be started within two years of the accident date, though the limitation period may be different in other cases.
More urgently, a car accident victim must serve notice on the at-fault driver, outlining the details of the claim, within 120 days after the car accident. We strongly recommend that you reach out to one of our pedestrian and bicycle accident lawyers in Sault Ste. Marie as soon as possible after a car accident to ensure deadlines aren’t missed.
Legal right to rely on the reverse onus
To succeed in obtaining damages in a tort claim, the usual rule is that the injured person (the plaintiff) must prove that the wrongdoer (the defendant) owed them a duty of care, that the defendant breached the standard of care, and that the defendant’s breach caused the injuries suffered.
An injured cyclist or pedestrian has a significant legal advantage. They do not have to prove negligence on the part of the wrongdoer to win their tort claim. That is because of the “reverse onus” in section 193 of Ontario’s Highway Traffic Act, which puts the obligation on the owner or driver of the vehicle to prove that the loss or damage didn’t arise as a result of their negligence or improper conduct.
While a cyclist or pedestrian has the benefit of the reverse onus, they are still required to prove the nature and extent of the injuries caused by the car accident. They also need to be prepared to push back against allegations of contributory negligence; the defendant will almost certainly argue that the cyclist or pedestrian was somehow at fault (e.g., pedestrian was distracted by their cell phone; cyclist was not wearing a bicycle helmet), and that their damages should be reduced accordingly.
Legal Advice from an Experienced Bicycle and Pedestrian Accident Lawyer
Sault Ste. Marie law firm Feifel Gualazzi specializes in obtaining financial compensation for people who’ve been hurt in motor vehicle accidents. Our team is here to help you navigate your personal injury lawsuit, Accident Benefits claim, and any insurance issues. We can help build a strong case and fight back against allegations of contributory negligence.
Our personal injury lawyers will help you explore legal options to ensure you receive fair compensation for your injuries, including claims for hit-and-run accidents and accidents caused by drivers without insurance. We serve clients in Sault Ste. Marie and the Algoma District.
To schedule a free consultation with one of our Sault Ste. Marie accident lawyers, please contact us today.