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.
The biking season is on us and we all need to ride safely. Unfortunately, no matter how safe you are, you do not control those around you. Approximately 20 percent of the neurotrauma injuries and deaths on our roads involve cyclists.
If you are hit, make sure you take the proper steps to protect yourself. If you are unable to do it, ask another cyclist or person on the scene to help you.
- Get immediate medical care.
- Contact the police.
- Take down the name, licence plate and insurance information of who hit you.
- Report the incident to the police if they do not attend the scene.
- Get the names of Witnesses. The police will investigate, but not all witnesses are listed in the accident report. As the scene disperses, key witnesses can be lost forever. The driver may tell a conflicting story of what happened. Without witnesses, it is you against them.
- Have someone photograph/video the scene, the location of your bike, the car, and the damage to the car that hit you. If the injuries are significant, this is valuable evidence that will assist forensic engineers in determining what happened and helping later on.
- Contact your own auto insurance company to apply for benefits within 7 days. There are various benefits available to you regardless if you are at fault.. If you do not have car insurance, send the forms to the insurance company of the person who hit you.
- Send in your benefits forms within 30 days.
- Notify within 120 days the driver that hit you that you intend to start a lawsuit.
- You have two years from the date of the accident to sue the driver that hit you. Many people are under the misapprehension that under the present no fault insurance regime, no one can sue. That is not true.
Ontario has one of the most complicated auto insurance systems in North America. It competes with the Income Tax Act when it comes to complexity. If you are significantly hurt while riding, you should consult a lawyer who specializes in this area. The times limits above are only a few of the many procedural mazes involved.
Ride safe, stay healthy and avoid lawyers!.