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BIKING, BOATING AND OTHER DANGEROUS SUMMER ACTIVITIES |
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(Tuesday, July 07, 2009 )
- The recent biking tragedy on March Road in Kanata has devastated not only the families of the cyclists involved, but most of the residents of Ottawa. We are horrified by the actions of the driver who plowed into 5 young cyclists and then left the scene. We are struck by the extent to which these unfortunate cyclists were injured, at the date this article is being written, one cyclist apparently remained unconscious.
I see devastating bicycling-motor vehicle accidents in my practice regularly, along with motorcycle accidents and swimming/diving accidents. You would think that with our treacherous winters, summertime accidents on the road and otherwise would be infrequent. Not true. A few days after this accident, there were reports of two additional cyclists who were injured in vehicular collisions.
Bicycling and motorcycle accidents can result in devastating injuries. Even when the cyclist is wearing a helmet, a head injury is not uncommon, as the cyclist will frequently be thrown forward. Tailbone and other orthopedic injuries are also very common. Three issues will frequently arise after the initial hospitalizations and trauma: First, what non-OHIP supplementary medical and rehabilitative care will be required to restore the injured person to pre-accident function, and how does one access funding for such care? Second, if the injured person is unable to work, what income replacement benefits will be available to them? Third, what are the potential legal remedies available to the cyclists and their families? For anyone who has been injured in an accident, this article may answer some of these questions.
Bicycle Accidents:
In regards to bicycling accidents, as well as pedestrian-motor vehicle accidents, a “reverse onus” applies. This is the reverse of the typical accident involving two cars, where the injured person bears the onus of proof, or responsibility, for proving liability or fault. In bicycle-motor vehicle collisions, the cyclists have the benefit of an assumption that the driver of the motor vehicle was at fault, and it is up to the driver to prove otherwise.
Of course, I am in no position to make any judgments against this particular driver. I have represented cyclists who may not have been keeping a proper lookout for vehicles or who may have veered onto the vehicular portion of the roadway, leaving very little time for a motorist to avoid a collision. In the March Road incident, however, it is difficult to imagine how these cyclists could in any way have been responsible for an accident where they were traveling in a clearly-marked bike lane and were suddenly struck from behind at high-speed. It does not appear that the driver’s view of these cyclists was obstructed. There is no evidence of alcohol involvement. The unanswered question is why he did not decelerate and drive around the cyclists, or at least decelerate after striking one cyclist? Just as importantly, why did he leave the scene?
As these individuals were quite seriously injured, they will require ongoing rehabilitation, medication and health care benefits as well as income replacement – all of which can be funded by “accident benefits” insurance, as well as any collateral insurance that they may have access to through their employment. Ontario has a no-fault insurance scheme. If you have been injured in a car accident, then irrespective of who is at fault, your own insurance company must provide you with Accident Benefits. If you do not own a vehicle, then it is the insurance of the vehicle that is responsible for the accident that will pay accident benefits.
Accident benefits include:
• Weekly income replacement benefits, if you are unable to complete the essential tasks of your pre-accident employment. The benefit is 80% of your net weekly income up to a maximum of $400 per week.
• Medical benefits, which includes medications, dental services, and prescription eyewear
• Rehabilitation benefits, such as physiotherapy, massage therapy, occupational therapy, assistive devices, and job re-training
• Attendant care, such as private nursing care, and the cost of having a family member attend to your personal needs while you recuperate.
• Outdoor maintenance, if you can no longer do things like shovel your driveway or mow your lawn
• Housekeeping assistance, up to a maximum of $100 per week.
• Transportation to and from medical appointments
• Payment of expense of your visitors and family members
This is not an exhaustive list of the accident benefits that could be available to accident victims. For individuals who have had orthopedic surgery, attendant care benefits are often critical to their recovery and rehabilitation. Many will require mobility aids that are only privately funded. For individuals with severe brain injuries, private neuropsychological and cognitive assessments are also vital to a proper diagnosis and identification of future intellectual deficits, these assessments are usually funded by the accident benefits insurer.
The nature of the injury may also impact on the type and duration of benefit available to an accident victim. For example, some individuals with serious head injuries, spinal cord injuries, and/or very debilitating mental health injuries may fall into the category of having sustained a “CATASTROPHIC IMPAIRMENT.” If the injured person is catastrophically impaired, the amount of benefits available to them increases substantially.
If you have been involved in an accident involving a car, call your auto insurer immediately and tell them you have been involved in an accident, they will send you an application for accident benefits.
In the event that the accident victims and their families pursue lawsuits against the driver, they would be entitled to compensation for pain and suffering, current and future lost income, health care expenses that would not be covered by accident benefits, and, possibly, punitive damages. Family members could claim compensation for “loss of care, guidance and companionship,” as well as the value of any nursing, attendant care or homemaking services they have provided to the injured person. If family members have had to absent themselves from work because of their caregiving responsibilities towards the injured person, or because they themselves are suffering from the psychological effects of seeing a loved one injured, then they can claim their loss of income in the lawsuit as well.
If you have been injured in an accident caused by another vehicle, contact the driver, the owner and the insurance company of each. Within 120 days of your accident, you must notify these individuals, in writing, and advise them that you have been injured and that you intend to pursue a claim for compensation against them. You will find the contact information, name of the insurance company and policy number on the police report. Send the letters by registered mail and keep a copy for yourself.
In addition to bicycle-vehicular accidents, there are numerous other popular and enjoyable summer activities that can potentially result in tragedy.
Diving, Swimming and Boating Accidents:
You invite friends to a cottage or your backyard swimming pool, and excess alcohol is consumed by your guests. They wander toward the lake or pool in a state of intoxication. Someone jumps in, and sustains a spinal cord injury. Damages for pain and suffering, lost income and future health care costs for such an injury can be astronomical.
The host of this party is potentially liable in negligence for failing to keep his/her guests safe while on the premises, and for allowing them to be near the lake/pool knowing that they were intoxicated. If you are to have a party of this nature, you should contact your broker or insurer to ensure that your insurance will cover mishaps of this nature. More importantly, the dock/lake/pool should be off limits once the alcohol is served, that is the best way to protect yourself, as well as your guests.
Another frequent type of accident that I see in my practice involves guests who fall off faulty decks and patios as a result of missing or loose railings. If you own a deck or patio, inspect it for safety before you have a party. If your deck or patio is partially completed, do not take a chance and use it to entertain your guests.
Boating collisions may also result in serious injuries. The operator of a boat may be negligent if one of his/her passengers falls out of the boat, or is otherwise injured in a collision. Is the driver experienced? Did the passenger wear a life jacket? Was there considerable traffic on the water that day? These are all considerations that are factored in to the assessment of whether the driver was negligent and can be held responsible for the passenger’s injuries. If you are a boat-owner, your boat must be insured for such claims.
Adventure-type activities:
Do you enjoy ziplining, horseback riding, and bungee-jumping? If so, make sure you are well-equipped and well-versed in the hazards associated with each of these activities. Most of the time, they are supervised and safe, but when accidents occur, they can be devastating and at times fatal. For owners of businesses that run such activities, adequate insurance, proper training of supervisors, regular and thorough inspection of activity equipment, and well-drafted waivers are key to ensuring that (a) patrons are safe during the activities, and (b) you are protected from lawsuits. For participants, beware that most of these businesses will require you to sign a waiver form or “exclusion from liability” document before you commence the activity. It is very important that you read this document and if you do not understand any terms, then advise the proprietor. Recent court decisions have held that if the waiver is worded broadly enough, it may very well be a complete protection from liability for the owner-operator of the premises against claims of negligence.
Golf Cart Accidents:
Be cautious when driving or sitting in a golf cart – you can fall out of one! And unfortunately, golf carts are not considered “automobiles,” so an injured person would not have access to an accident benefits policy that would cover their physiotherapy, medication, income replacement and other expenses. The golf cart driver’s home insurance may respond to a claim for negligent operation of the golf cart.
Amusement Parks, Rides, Waterslides:
Amusement parks are dangerous! Usually, due to the volume of visitors and the number of activities on the premises, the grounds are not maintained regularly and present trip and fall hazards to patrons. We have all heard stories of people being injured on amusement park rides, the injuries are often caused by technical mishaps, equipment breakdown, poor or infrequent repairs, or inadequate supervision by (at times inadequately trained) ride operators. I would argue that because the vast majority of patrons are young children, the duty of care on the ride operators and supervisors is very high. Ultimately, if a person is injured and seeks compensation as a result of the amusement park’s negligence, the case will often turn on expert evidence, such as engineering and, in the case of water parks, water safety experts.
Be Safe and Enjoy the Summer
Of course, the situations I have discussed in this article are frequent occurrences in my world, because I am a lawyer, but the reality is that most of these activities do not attract the devastating conclusions – and lawsuits – that I have described. However, it takes a split second for some one to fail to pay attention to the roadway, or to otherwise cause an accident. If you are to glean anything from this article, then it is that regardless of whether you are an owner-occupier-operator, or a participant in a summertime activity, be prudent and sensible, and have regard for the hazards above. It is also important for all parties to have insurance – liability insurance as well as medical and income-coverage insurance.
Najma M. Rashid is a lawyer with Howard Yegendorf & Associates and its sister firm, BrazeauSeller.LLP. She practices in the areas of civil litigation, personal injury and insurance. For more about Najma and her practice, please visit www.yegendorf.com. Najma can be reached at nrashid@yegendorf.com and (613) 237-5000 ext 243.
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