Howie, Sacks & Henry LLP – Personal Injury Law – Eman Khoshbin
Eman Khoshbin

Spring has sprung and that means more cyclists on the roads. Unfortunately, with this seasonal increase of cyclists and vehicles sharing the roads, there is also an increase in the statistical probability of cyclist-motor vehicle accidents.

Similar to any other type of vehicular accident, litigators are required to consider several separate and distinct factors in determining each party’s apportionment of responsibility when handling cyclist-motor vehicle accidents. However, unlike accidents between motor vehicles, cyclist-motor vehicle accidents are treated differently under the governing statutes and by Courts. Cyclist-motor vehicle accidents also involve factors that are often irrelevant in accidents between motor vehicles. While this article will provide several important touchstones for litigators to consider when conducting a liability analysis in the context of a cyclist-motor vehicle accident, it is not meant to be exhaustive.

Reverse Onus

The starting point for any cyclist-motor vehicle accident is the “reverse onus” imposed by section 193(1) of the Highway Traffic Act (“HTA”), R.S.O. 1990 c. H.8:

When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle. 

What this means is that the onus is on the Defendant to prove, on a balance of probabilities, that the collision did not arise from his/her negligence or improper conduct. The reverse onus imposes a rebuttable presumption. It does not necessarily mean that liability will be found against the driver in all cases. As a bicycle is classified as a vehicle under the HTA, cyclists have the same rights and responsibilities to obey all traffic laws—similar to other motorists.

The reverse onus provision also does not apply to private roadways (e.g. parking lots, private property, etc.). Further, as per section 193(2) of the HTA, this reverse onus does not apply to collisions between motor vehicles.

Police Records

The notes and records of the police officers investigating and reconstructing the accident often prove to be the best starting point for determining the underlying facts of a cyclist-motor vehicle accident. The police records will typically provide the most contemporaneous evidence of the circumstances that led to an accident and what transpired at the point of collision. Specifically, there will be details regarding:

  • The mechanics of the accident (i.e. the actions of  the driver and cyclist and whether both parties obeyed traffic laws)
  • Detailed descriptions and measurements of the streets and their lanes, bike lanes, the governing traffic/pedestrian lights and signs, crosswalks, the throw distance of the cyclist, the landing position of the cyclist, the landing positions of the cyclist’s personal items after impact (e.g. keys, cell phone, shoes, helmet, etc.), the stopping position of the vehicle and any tire marks
  • Diagrams depicting the shape of the intersection, crosswalks, and the driver and cyclist’s movements
  • Photographs of the intersection and surrounding area, the cyclist’s clothing, damage to the vehicle/bicycle, etc.
  • Estimated speed of the driver and cyclist
  • Road conditions (wet vs. dry, construction, etc.)
  • Weather (and its impact on driving conditions, visibility and the driver’s/cyclist’s adjustments to control their vehicle/bicycle accordingly)
  • Visibility (potential building, tree or other natural/artificial sightline obstructions, driver’s and cyclist’s visual acuity, etc.)
  • Lighting conditions (natural and artificial)
  • Cyclist’s clothing, personal items (e.g. backpacks, purses, grocery bags, etc.), gear, reflective lighting and apparatuses
  • Distractions (e.g. cell phone usage, speaking to passengers, looking at oncoming traffic while completing a turn, etc.)
  • Alcohol or drug use of either the driver or cyclist
  • Witnesses and statements

It is not only important to review what is contained in the police records, but also to consider what is absent from these records. There have been cases in Ontario’s courts where, at trial, witnesses have changed their accounts of what they observed and previously reported to police on the date of an accident (e.g. cell phone usage which was not mentioned to investigators at the scene of an accident).

It is always prudent to obtain Court transcripts from any criminal or Highway Traffic Act proceedings that pertained to the underlying accident in order to have sworn evidence from all of the witnesses that testified. In addition, police records often omit information pertaining to the cyclist or driver’s level of experience (other than the class of the driver’s license), and the cyclist and driver’s familiarity with the specific location of the accident and its surrounding area. Drivers are expected to exercise a greater level of prudence in areas where cyclists and other pedestrians can be expected (e.g. residential areas, schools, high-traffic shopping plazas, etc.).

Accident Reconstruction Experts

Accident reconstruction experts are often retained by counsel in cyclist-motor vehicle accidents. It is best to locate an expert as soon as possible after being retained as there can be structural changes made to the street, intersection, traffic lights/signs, lighting and surrounding buildings/fixtures, etc., which may negatively impact the ability of an expert to render an accurate and comprehensive opinion.

Through the usage of literature, physics, mathematics and an understanding of common driving practices, these experts are able to provide hypotheses regarding drivers’ and cyclists’ movements; any evasive manoeuvers or steering adjustments made; speed; points of impact; reaction times; sightlines; and natural, street, vehicular and other artificial ambient lighting (i.e. in illuminance measurements known as lux). These experts can provide many helpful photographs and intersection/street schematics from the time of their investigation or dating back to the time of the accident. They can also comment on the comprehensiveness and accuracy of the police investigation/reconstruction, and fill in any gaps that were not canvassed during the underlying investigation. After completing their investigation, they can also produce an accident reconstruction animation, which can effectively serve as a moment-to-moment simulation of how the accident transpired.[ 

Witnesses

It is always prudent to obtain any independent witnesses’ names and contact information, and to contact these witnesses as early as possible as memories fade with time. Moreover, as time passes, witnesses can become more difficult to track down as they may no longer live in the province or country, or may otherwise be unavailable.

Cyclists’ Visibility on Roadways and Proper Gear

Cyclists are often reminded to wear light-coloured or reflective clothing and/or have lights attached to their helmets, bikes and clothing clothing for safety purposes. Beyond safety considerations, according to section 62(17) of the HTA, cyclists have a duty to be visible between dusk to dawn: 62(17) When on a highway at any time from one-half hour before sunset to one-half hour after sunrise and at any other time when, due to insufficient light or unfavourable atmospheric conditions, persons and vehicles on the highway are not clearly discernible at a distance of 150 metres or less, every motor assisted bicycle and bicycle (other than a unicycle) shall carry a lighted lamp displaying a red light or a reflector on its rear, and in addition white reflective material shall be placed on its front forks, and red reflective material covering a surface of not less than 250 millimetres in length and 25 millimetres in width shall be placed on its rear.

According to section 75(5) of the HTA, cyclists are also required to have a working bell or horn, which should be used whenever it is reasonably necessary to notify pedestrians or others of their approach. As per section 104(2.1) of the HTA and section 5 of Reg. 610 under the HTA, cyclists that are under the age of 18 are also required to wear a regulation-compliant helmet that is securely fastened under the chin. Further to section 64(3) of the HTA, cyclists are also expected to have at least one functional brake system on their bicycle’s rear tire.

Crosswalks

Crosswalks are another significant consideration in the context of cyclist-motor vehicle accidents. There are strict prohibitions on cyclists with respect to crosswalks. Specifically, sections 140(6), 1(1) and 144(29) of the HTA state the following:

140(6) No person shall ride or operate a bicycle across a roadway within a pedestrian crossover.

1(1) “pedestrian crossover” means any portion of a roadway distinctly indicated for pedestrian crossing by signs on the highway and lines or other markings on the surface of the roadway as prescribed by the regulations;

144(29) No person shall ride or operate a bicycle across a roadway within a crosswalk at an intersection or at a location, other than an intersection, which is controlled by a traffic control signal system.

Bike Lanes

Cyclists and drivers must adhere to a host of rules and laws surrounding bike lanes and it would behoove both to learn them before getting on the road. Bike lanes are typically marked with painted white lines, bicycle logos, diamond markings or other traffic signs, which inform cyclists and drivers that the bike lane is specifically designated for cyclists’ use. Bike lanes are typically found on the right side of streets as cyclists are expected to stay as close to the right edge of a roadway whenever possible. Bike lanes not only allows cyclists to be more noticeable to drivers, but they also provide an indication to drivers that they should provide space to cyclists.

Bike lanes also help to encourage motorists to be mindful of the general one-metre safe passing rule outlined in sections 148(6.1) and 148(6.2) of the HTA, which states that drivers who wish to overtake cyclists must leave at least 1 metre of distance while passing. Drivers are expected to not park or drive in a bike lane as it can cause cyclists to abruptly merge into vehicular traffic in the adjacent street lanes. Drivers are also generally prohibited from entering a bike lane unless there is a dashed line on the pavement or some other traffic sign that indicates that they are allowed to do so. If there is evidence of there being a flaw in the design of the bike lane or road, counsel are reminded that there are strict notice deadlines that must be complied with.

Conclusion

In any cyclist-motor vehicle accident, the ultimate questions seem to be: 1) whether the driver and cyclist acted reasonably and rationally in the circumstances, and 2) whether the cyclist and driver maintained a proper lookout. The factors listed above should guide this analysis and structure any litigator’s answer to these two questions.

With over 40 years of experience at Howie, Sacks & Henry LLP, we have a proven track record of advocating on behalf of cyclist-motor vehicle accident victims and other personal injury victims. For more information or to have a free consultation, please contact the authors of this article: Eman Khoshbin at 416-361-7583 or by email at ekhoshbin@hshlawyers.com, or Michael J. Henry at 416-361-0889 or by email at mjhenry@hshlawyers.com.



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Among the best in Canada

Since 2011 Canadian Lawyer Magazine rated us one of the top personal injury law firms in Canada. Why? With close to 20 years helping accident victims and their families, our firm understands the laws that affect your rights to compensation because we’ve helped shape those laws in favour of accident victims.