As the spring and summer rides are starting, cyclists and ride organizers should be aware of the recently released (April 05, 2013) Ontario Superior Court case, Kempf v. Nguyen.
Madam Justice D.A. Wilson found a cyclist liable for injuries sustained by another cyclist when a crash occurred at the Becel Ride for Heart on the closed off Don Valley Parkway. The Defendant cyclist was found responsible for the crash when he made a sudden and erratic move without signaling, causing a rear approaching rider to lose control and crash. Both were experienced cyclists. In finding the Defendant liable, Justice Wilson stated,
I find that Nguyen was negligent, that his negligence consisted of making a sudden movement while riding in a group, failing to maintain a straight line, failing to signal his intention to move and moving directly into the path of the Plaintiff when he could have moved out to the right.
The case is significant since their has been few civil actions where a cyclist has been held liable for the injuries of another cyclist. As many aware, most cycling claims arise when the cyclist is struck down by a car or truck. The Court held that their is a duty to take care amoung cyclists and went on to find,
the participants … in a group ride had to ensure they did nothing to put the safety of the other riders in peril. There is an element of trust between cyclists who ride in a group because of the proximity to others and the fact that any sudden or unexpected movement can have a disastrous effect on the safety of the other rider
The Defendant cyclist had argued that there was an “inherent risk” associated with the sport and the ride and therefore there ought not to be a duty of care. In dismissing this defence, the Court stated that the fact that cycling carries with it some inherent risks does not mean the duty of care of Nguyen is negatived.
As to what standard will a cyclist be put to in regards to their fellow riders, the Court concluded,
reasonable care depends on what the participant agreed to reasonably expect given the nature of the sporting event, in a case involving cycling, there is no reason to impose a higher onus on the Plaintiff, to prove that the Defendant conducted himself in a reckless fashion. By its nature cycling is not a contact sport or one that involves physical encounters with opponents such as football or rugby
Although the injured cyclist had signed a waiver, it was held that it did not release a claim for negligence against another rider. The lawyer for the injured cyclist did not pursue any case against the Heart and Stroke Foundation.
For those ride organizers, a review of the case and the commentary regarding the waiver is essential. When dealing with the issue of the waiver, Justice Wilson noted,
The waiver is poorly drafted and confusing … While there is reference to the “participants”, the waiver does not release other participants, but rather the various organizations from claims against them, including damages occasioned by the negligence of a participant or other competitor. It clearly does not release other riders from claims arising from their negligence during the ride.
As the Provincial Government grapples with a new cycling strategy, anyone engaged in the debate understands that there are no simple solutions or quick fixes. An old infrastructure designed for cars, clogged roadways with users competing for space, and a limited amount of funding make meaningful change at all levels seem next to impossible. Where do we begin? A one meter passing rule. That’s a good start, but not a long term solution. Riding paths that circle the City, although valuable do not get you safely to the store to buy bread, work or go to the local café. The implementation of bike lanes seems to be like trench warfare. Gains and losses are determined street by street, ward by ward, city by city. Exhausting, slow and for the most part disjointed.
However there is hope! It emerges from the forward thinking of our Chief Coroners’ Office. It is not based on specifics, but on how decision makers are to look at things. A new culture perhaps. Its called “Complete Streets”. Words, that to date, are not mentioned in any provincial policy statement, legislation, or standard. An approach that is growing in US. One that has been advocated for the last few years by active transportation advocates like TCAT and Cycle Toronto.
One that now has some wheels. In 2012 the Office of the Chief Coroner for Ontario released the Cycling Death Review. During the course of the review, various stakeholders including the Coroner’s Office, medical professionals, law enforcement, Toronto Transit Commission, Ministry of Transportation of Ontario (MTO), Ontario Medical Association, City of Toronto, and various cycling and road associations participated.
Following the review the Dr. Dan Cass, Deputy Chief Coroner made his number one recommendation to be “Complete Streets”. The words were clear. “To the Ministry of Transportation and Ministry of Municipal Affairs and Housing a complete streets approach should be adopted to guide the redevelopment of existing communities and the creation of new communities throughout Ontario.”
Shortly after that, the Coroners office released the Pedestrian Death Review. Again, the very first recommendation was “Complete Streets”. “The complete streets approach should be adopted to guide the development of new communities and the redevelopment of existing communities in Ontario. Complete streets should be designed to be safe, convenient and comfortable for every user, regardless of transportation mode, physical ability, or age.”
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The Supreme Court of Canada has held that motorists ought to be held liable for injuries when they fail to slow down and drive carefully in areas where there is a possibility there may be children, including playgrounds, schools and built up residential areas.
In the case, Anapolis County District School Board v. Marshall, a 4 years old suffered “catastrophic” injuries when struck by a school bus. The Supreme Court upheld the trial judges direction to the jury that recited the law, as it applied to children, is as follows:
In a school or playground area or in a built up residential district, a motorist should drive more slowly and carefully and keep a lookout for the possibility of children running out into the street. Here you must decide whether the circumstances were such as to put the defendant motorist on notice that he was approaching an area where children were likely to be, and therefore should exercise greater care in the operation of his motor vehicle.
In dissenting reasons for Judgement, Justice Cromwell found that the Jury charge was in fact confusing and that the heightened standard of care when driving near children needed to be stressed even more by the trial judge.
The ruling is consistent with the recent Ontario Coroners’ Review on Pedestrian Deaths that calls for reduced speed limits in areas with children. Simply going the speed limit may not be enough. The actions of a child are clearly different than adults. When drivers are entering areas where there is a possibility of children running out, they ought to slow down and keep a keen eye out. The ruling adds to a long list of authorities that require extra care must be taken when children are involved.
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.”
On July 1, 1998 W.J. Lucas, Regional Coroner for Toronto, July 1, 1998 recommended Transport Canada investigate the feasibility of requiring “side guards” for large trucks, trailers and buses operated in urban areas to prevent pedestrians and cyclists being run over by the rear wheels in collisions with these large vehicles.
Side guards are a legal requirement in the UK and in Europe to reduce injuries to pedestrians and cyclists. The mechanism of injuries for cyclists and pedestrians involved in slow speed collisions to be a dragging down motion of the victim caused by the large tire’s slow rotation. Side guards are designed to reduce the risk of a cyclist or pedestrian being dragged down under the rear wheels. The lack of side guards has been a contributing factor to multiple deaths to cyclists over the years including two deaths within the core in 1996 (which gave rise to the 1998 recommendation) and the death of Ryan Carriere in 2005.
The Federal Government (Transport Canada) sets vehicle standards for all new vehicles which are manufactured in or imported into Canada. The responsibility for mandating truck or bus safety equipment, including retrofitting, would therefore fall under the jurisdiction of Transport Canada. The responsibility of the Province would include prescribing that side guard protection remain in place and maintained if they were prescribed by the Federal Agency. Read more of this article »
Halloween is coming fast. To ensure children are safe while still having fun, Halloween safety tips include:
Before buying or making your childs’ costumes, consider the following:
- Avoid Trips and Falls. The UL Safety Guide advises that Halloween costumes should “allow full movement for your kids. Costumes that drag, constrict or drape pose a dangerous hazard, especially at night. Check to ensure that costumes don’t restrict your children’s vision, and instruct them to watch out for tripping hazards, such as cords”.
- Flame Resistant Material: Also check to see if the costume is made of flame-resistant materials. During Halloween many jack o lanterns are lit by candles located near the trick or treat areas.
- Be Seen, Be Safe: Attaching reflective materials to costumes also ensures greater visibility. Make sure each child has a flashlight to help them see and be seen.
- See more at the Under Writers Laboratories Halloween Safety Guide
Jack O Lanterns:
Battery lit lanterns are the best option to keep children safe. If candles are used, the pumpkin should be placed well out of reach of all children.
Make sure the kids do not eat the candy until you have had an opportunity of inspecting it at home under the light. Suspicious or open packages should be thrown away.
Road Safety Tips:
A quick reminder of road safety tips should be given to the kids going out on their own or in a group. The Ontario Safety League posts Elmer’s 7 Safety Rules which include looking all ways before you cross the street and when “leaving a curb, don’t run.”
For those driving, reduce your speed and keep a look out!
The Financial Services Commission of Ontario (FSCO) Panel selected to review the definition of Catastrophic Injuries has released their report.
To those consumers not familiar with this, see my previous blog “Catastrophic Impairment under a Microscope.” It was anticipated that the review of the definition would give rise to maintaining or granting greater access to medical and rehabilitation benefits to those suffering catastrophic injuries. The last set of changes made by the Ontario Government in September 2010 saw many accident benefits slashed in half or eliminated for the less seriously injured. These cuts were made in order to ensure that the system was financially able to protect those suffering from the more disabling catastrophic injuries. Therefore it was extremely alarming to see that the FSCO Review Panel has recommended new changes which will make it more restrictive for the seriously injured victims to meet the catastrophic definition.
If implemented, a large portion of these victims will be denied the designation and suffer greatly with the reduced benefits. The changes prevent the injured person from having psychological injuries combined with physical injuries when conducting the assessment. As well, they propose to get rid of the GCS score as a designator for those suffering brain injuries. The brain injury victim will no longer be able to qualify based on the early GCS score, but would rather be subject to a longer and more detailed assessment. An assessment which will delay benefits from flowing and costs significantly more.
This means that many people who suffer serious brain impairments, psychological injuries and physical injuries will be denied access to meaningful benefits in the future. The funds normally spent to get the seriously injured victims better or allow them to live with dignity will simply remain within the insurance companies. Of course, this will in turn increase the profitability of the insurance industry and put higher demands on the public health system.
However, the panel is only the first step in the review. The recommendations are not yet law. FSCO and the Government also requested submissions from the legal and medical communities. The deadline of May 13, 2011 has now passed. The response by these communities has been loud and clear. The recommendations are premature, flawed and ought not to be implemented.
A panel of prominent medical specialists in field of traumatic injuries have taken objection to the recommendations. This panels’ review was endorsed by the Alliance of Community Medical and Rehabilitation Providers of Ontario. The medical outcry is of no surprise, since the recommendations now being made are at complete odds with a 2001 Medical Panel Review. The September 2001 Review was supported by the insurance, legal and medical communities.
The major legal organizations have also stood up and indicated that these recent recommendations ought not to be implemented. They include the Ontario Bar Association, The Advocates’ Society, and the Ontario Trial Lawyers Association.
Based on the resounding objection, one can not imagine the Government giving any weight to the proposed recommendations. What is interesting is that in the submission made by the Alliance, they understand that over half of the panel making these recommendations had been at one time consultants with the Insurance Bureau of Canada.
What is really driving these recommendations?
Voice your Opposition to the Panel’s Recommendation and put people before profits. Send an email to your local MPP today before it is too late!
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!.
The Financial Services Commission of Ontario (www.fsco.gov.on.ca) has now commenced a review of the “Catastrophic Definition”. The outcome of this review will have a dramatic impact on the victims who suffer severe disabilities in car crashes. For those deemed to be “catastrophic”, it can mean the ability to access essential services to live independently and with dignity. For those that are not, it can mean a life of limited help, despair and a stalled recovery. The stakes are very high!
The FSCO has now appointed an Expert Medical Panel to make recommendations regarding the definition and the assessment process. Careful attention will be made on people suffering traumatic brain injuries, paralysis, spinal cord injuries, severe mental and psychological disorders, and those suffering from multiple broken bones.
Many lawyers, doctors, rehabilitation professionals and treating providers are looking forward to the review. It is hoped that it will finally address the many holes that are within the system. Holes that have resulted in many seriously disabled victims being left out in the cold when it comes to basic care services and rehabilitation treatment. Treatment that will help them get better and integrated back into society and the workforce.
The last changes made by the Ontario Government to the insurance system was in September of 2010. These changes saw a drastic reduction in benefits to those suffering less severe injuries. The intent was to eliminate and drastically reduce benefits flowing to people suffering minor injuries. By cutting the flow, it would mean insurance companies would not have to raise auto insurance premiums to the driving public. It was also seen as a way of making sure greater benefits could flow to the more seriously disabled victims. As some would say, soft tissue injuries would have to take a back seat to the seriously injured.
Although the review process is to look at ways of making the present system better and more efficient, some fear that it will be used as a vehicle by the insurance industry to make it harder for people to be deemed “catastrophic”. This of course would mean people who otherwise would have up to two million in benefits available to meet their needs, would be reduced down to a bare bones package that is exhausted normally with one to two years. This of course cannot be the intent of the review. The review ought to ensure greater access is given to the seriously injured. Substantial savings have already been afforded to the insurance industry as cited in my previous blogs. To now go after the seriously injured and seek to reduce their benefits is just wrong.
Many are confident that the medical panel, FSCO and the Ministry will ensure these seriously injured persons are protected. An expansive approach with the definition must be done. A definition that recognizes all serious injuries. A definition that takes into consideration the collective impact of all injuries on the disabled. It should never be forgotten that there are no windfalls that happen when one is deemed “catastrophic.” Even if someone is found to suffer a catastrophic injury, they still must prove the need for benefits. It simply does not mean money falls on to their lap and they keep it. The money goes to rehabilitation, home modifications, mobility aids, and attendant care. The disabled person still must prove they need the services ( the wheelchair ramp, the wheel chair lift, the helper to get dressed etc.). If they don’t prove it, they don’t get it. If the definition is expanded, it simply means those who need it can access it beyond the temporal and monetary caps of $3,500 or $50,000 as set out in my previous blogs.
If the panel or FSCO or the Ministry seek to tighten up the definition, which would be contrary to the intent of the review, then many severely disabled individuals will be shut out from accessing the rehabilitation and medical help needed to live with dignity and independence. Of course further restriction would simply mean greater savings to the insurance industry. This time however, it will be on the backs of the severely disabled.
This Halloween will be the fifth anniversary of the death of Ryan Carriere. Ryan was killed when struck down by a truck making an improper right turn at Queen and Gladstone. Ryan was a loving husband and a devoted father to his children. He was an artist, a cyclist and an integral part of his community. Ryan was a remarkable individual and his death was preventable. He was an innocent victim. He was simply riding his bike home from work.
A new City Government will be in place within weeks. They will be empowered to decide how infrastructure money will be spent. It is hoped that each councillor will take the time to review what happened to Ryan and the many other cyclists that have been either killed or injured on Toronto streets. The human factor should never be forgotten when policy decisions are made. Injuries and deaths on the streets are preventable.
In 1975 City Council adopted a statement that “it is the policy of council to implement programs that will promote and facilitate greater and safer use of the bicycle.”
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