Contributory Negligence & Cyclists

(*Inspired by Natascha Grief's piece in Bicycling Magazine about Raissa Lopes)

James was cycling down Queen Street, Toronto when he was hit by a car making an illegal left across his path. James suffered a concussion in addition to a variety of orthopaedic injuries. The motorist was charged and convicted of an improper turn under the Highway Traffic Act. James retained us and we commenced a legal action.

Over a year later we were presented with a settlement proposal from the driver’s insurance lawyer. Rather than offer full compensation they attempted to deduct 15% from our client’s claim because he was not wearing a helmet at the time of the crash.

The driver in this case was at fault and people over 18 are not required by law in Ontario to wear a helmet on a bicycle. However, Ontario Civil Law Courts frequently reduce claims due to “Contributory Negligence” when action or inaction on the part of the cyclist may have contributed to the crash and/or crash related injuries. In our case, the lawyer’s reasoning was that had our client worn a helmet, his traumatic brain injury would not have been as serious.

Though we fought back against the allegation of contributory negligence and were ultimately successful it is important to understand what the cycling community is up against if they are injured, and their case goes to court.

Ontario Courts require that you mitigate the risk of injury when you are cycling. Failing to take precautionary steps like wearing a helmet could mean that if you are injured you will face some difficult hurdles in order to obtain full compensation.

In the past you may have read our article It’s Always the Car’s Fault about the Highway Traffic Act Reverse Onus provision. This places the burden on motorists of demonstrating they were not at fault for a collision with a vulnerable road user. Yet, if a driver can prove that a cyclist was to a certain extent liable for their own misfortune, the cyclist will be found to be contributorily liable. This will impact the amount of compensation received as a result. A 40% Contributory Negligence finding means a 40% reduction in your damages.

An example of this is the case of Pelletier v. Ontario, where a Police Officer hit a cyclist in a crosswalk at night. The judge split liability 60% as against the Officer and 40% against the cyclist because he was riding in a crosswalk, had no lights (both HTA violations) and was wearing dark clothing. The cyclist’s injury claim was reduced by the 40% for which they were held responsible for the collision.

In the Hamilton case, Repic v. Hamilton (City), the cyclist was found to be 45% liable for the crash having been Contributorily Negligent for all of the following reasons:

• he did not stop before entering the exit ramp;

• he was riding a bicycle which did not have any lights;

• he was riding a bicycle at night while wearing dark clothing;

• he either did not look, or failed to look properly, for oncoming traffic before entering the road; and

• he did not see the vehicle because he did not look properly.

In St. Marthe v. O’Connor, the Ontario Court of Appeal confirmed that the cyclist was not contributorily negligent for not wearing a helmet because the Defendant did not prove a causal link between the injury to the back of his head and not wearing a helmet. Expert evidence must be led by the defence to prove this because in many cases we know that a helmet will not reduce the chances of injury from being struck by a motorist.

The case law reviewed above, as well as cases outside of Ontario dealing with contributory negligence indicate that Courts will impose certain obligations on cyclists, which can include:

• Cyclists must make themselves visible to traffic by the presence of lights on their bicycles, by wearing reflective clothing, and by their speed and location on roads;

• Cyclists must maintain a proper look-out;

• Cyclists must yield to vehicular traffic with the right of way;

• Cyclists are obligated to obey traffic control signs and signal devices;

• Cyclists must not permit themselves to become distracted, by electronic devices or otherwise, or be upon roads when impaired by alcohol;

• Cyclists must maintain a speed and a distance from other users of the road that permits a timely response to emergencies; and

• Cyclists must be aware that though not illegal, failure to wear a helmet may constitute contributory negligence where they sustain a head injury, which the helmet would have prevented or minimized.

What every cyclist needs to understand is that the best way to protect ourselves in the event of the unthinkable is to take precautions and wherever possible follow the rules of the road. The vast majority of bike crashes are not caused by the cyclist and certainly not because they weren't wearing a hi-vis vest, but from our experience the auto insurance companies will do whatever they can to minimize your claim – don’t give them that opportunity.

STAY INFORMED

“ […] contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless. - Jones v Livox Quarries, [1952] 2 QB 608 (Eng CA)

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