By: Patrick Brown, McLeish Orlando LLP
Published in: Precedent Magazine, Spring 2014 issue
Toronto has one of the highest collision rates per capita for cyclists of any large Canadian city. More than 1,000 bicycle riders are injured in Toronto each year — and the real figure is much higher, since an estimated 80 percent go unreported. (Our province isn’t doing so well either: roughly 26,000 Ontarians wind up in the ER each year due to cycling accidents.)
As a critical injury lawyer who works with victims of cycling accidents and their families, I’ve had a front-row seat to the aftermath of these collisions. The devastating impact these cases have on victims’ loved ones goes far beyond what the statistics report. And there’s a tragedy of an even wider scope: so much could be done to prevent both minor injuries and fatalities on bikes. Our city and province know what these things are, but without the threat of lawsuits, our governments are reluctant to invest money in cycling safety.
In 1998, Ontario coroner Dr. W. J. Lucas conducted a review of cycling deaths and gave recommendations on how to prevent them, including segregated bike lanes, helmet laws and sideguards on heavy trucks. Fourteen years later, Ontario’s deputy chief coroner Dr. Dan Cass released the 2012 Cycling Death Review with a slate of recommendations that was nearly identical.
Yet, of the 495 km of bike lanes promised in the 2001 Toronto Bike Plan, less than a quarter have been built. Cycle Toronto reports that we have fewer bike lanes now than in 2009. In 2013, no protected bike lanes were added and only 2.4 km of painted bike lanes were put in place.
Civil lawsuits are often a catalyst in holding governments accountable and forcing legislative and regulatory change. But the city rarely gets taken to court over cycling accidents, and so has no incentive for putting money into cycling.
Here’s why: most automobile drivers in Ontario carry around $1 million in third-party coverage in the event they hurt or kill someone — like a cyclist — while trucks often have even higher limits. In addition to this coverage, there are also no-fault insurance benefits that are paid out by the auto insurers to the injured. (The auto insurance industry addresses this by increasing insurance premiums; Toronto drivers pay some of the highest premiums in the province and in the country.)
In the majority of cases, the injured cyclist (or family of the deceased) will only elect to sue the driver because there is enough insurance to cover their needs, and these cases are often quite straightforward. Adding the city or even the provincial government for their neglect — a much harder case to win — would create added litigation costs and risk. If you don’t beat the government, you could be on the hook for their legal fees, which can cut into your existing insurance payout.
In contrast, some motorists who’ve been in serious accidents have been able to successfully sue the government and that has led to considerable proactive changes to our roads, such as better lighting, guard rails and winter salting. There are simply more car accidents — 215,000 or so annually in Ontario — and more catastrophic injuries that require more compensation and inspire more victims to sue.
The provincial government needs to step in. The Ministry of Transportation and Ministry of Municipal Affairs should adopt a provincial policy statement that all roads be planned as “complete streets” that enable pedestrians, bicycles, transit riders and motorists to interact and move safely.
Enough of this war on our streets between drivers and cyclists. The real problem is that governments are not protecting everyone who uses our roads.
You can also hear our podcast featuring a discussion with Patrick Brown about his article.
Patrick Brown is a partner at McLeish Orlando LLP and a critical injury lawyer. He is a commuter cyclist, past director of Cycle Toronto and, with Albert Koehl, pro bono counsel in the 2012 coroners’ reviews of cycling and pedestrian deaths.
This article originally appeared in the Spring 2014 issue of Precedent Magazine.