By: Patrick Brown, Marie Smith and Albert Kohl
Originally published in the Toronto Star on June 22, 2015
Your father is struck and killed when a car veers across the oncoming lane and into his path. The police charge the motorist (who was trying to unhook her sandal from the gas pedal) with careless driving under the Highway Traffic Act (HTA). Months later you attend court. The prosecutor and driver’s representative have negotiated a $500 fine for a lesser offence of “leave road not in safety.” The motorist isn’t even in court to hear the victim impact statement, which you struggle to read: “We hope that we will wake up, and it will all have been a bad dream.”
This very scenario, involving cyclist Bruce Tushingham, took place in Markham, Ont., not so long ago. Lamentably, the outcome is hardly unusual.
To read the full article in the Toronto Star – Ontario failing to protect cyclists, pedestrians click here.
Marie Smith is past president of the United Senior Citizens of Ontario. J. Patrick Brown and Albert Koehl served on the expert panel for the Ontario Chief Coroner’s 2012 review of pedestrian and cyclist deaths. Brown is representing the Tushinghams in a civil suit against the driver.
By: Patrick Brown
In Davies v. Elston, 2014 BCSC 2435 (CanLII) the defendant motorist overheard two passing cyclists commenting on the danger presented by the outstretched mirrors of his truck, which was parked to the right of a designated bike lane. Annoyed, he got in his truck and chased the cyclists. A verbal altercation broke out and one of the cyclists fell and broke his hip.
Despite the fact that there was no contact between the car and the cyclists, the motorist was found to be entirely at fault for the cyclist’s injuries. Justice Griffin wisely states in the decision:
“No matter how aggravating a cyclist’s behavior might be, and I find there was nothing aggravating about the Davies’ conduct, a driver of a motor vehicle can never be justified in deliberately using a motor vehicle to confront a cyclist who is riding a bike… It has to be remembered that motor vehicles have four wheels, automatic brakes, seatbelts and the driver is nicely encased in a heavy steel cage and that a person on a bicycle is not in a situation which is the least bit comparable, even if going the same speed as a vehicle. A cyclist cannot stop on a dime, is vulnerable to losing balance, and can be seriously injured or killed if he or she makes contact with a motor vehicle or falls at a high speed.”
A recent decision in Ontario will help injured cyclists obtain insurance benefits when they crash due to parked cars.
Marilena DiMarco was riding her bicycle in a town that had closed its main street for a festival. She was forced onto a sidewalk, which was partially blocked by a parked van. DiMarco tried to avoid the van, lost her balance and fell, hitting the van with her hand in the process. She was seeking auto insurance benefits to help her in her recovery. The auto insurer was denying entitlement because the crash was not connected to an automobile
In the decision DiMarco and Chubb Insurance Company, arbitrator Deborah Pressman accepted that the incident arose directly from the “use or operation” of an automobile as defined in the Insurance Act and Statutory Accident Benefits Schedule (SABS). This allowed Ms. Di Marco to claim benefits for her injuries.
Arbitrator Pressman stated “This automobile set in motion a chain of events directly resulting in Ms. DiMarco’s fall from the bicycle. There was no intervening act that caused Ms. DiMarco to fall. There were no other impediments around the automobile or near Ms. DiMarco.”
“Therefore, there was a direct and proximate cause between the ‘use or operation’ of the automobile and Ms. DiMarco’s injuries.”