It's Always The Car's Fault
*The following applies to civil proceedings where a cyclist sues for damages resulting from a crash with a car.
Toronto is abuzz with an ever-increasing number of cyclists. Sadly, too few bike lanes squeeze cyclists and car drivers into tight and poorly conceived infrastructure, which too often results in collision.
When a crash occurs between a car and a vulnerable road user, like a cyclist or pedestrian, the Highway Traffic Act (HTA) applies and sets out a "reverse onus” to determine who was at fault. A car driver is presumed to be at fault for the crash with a cyclist unless they can present evidence that proves otherwise. The reverse onus is outlined in section 193(1) of the HTA:
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.
The effect of section 193, in theory at least, is that a driver must establish that they acted reasonably and properly in the circumstances, while the cyclist need only prove that the crash occurred and that the crash caused them injuries and other damages.
The rationale behind the reverse onus is to create an additional incentive for motorists to be more careful of cyclists and pedestrians who are more vulnerable to injury. In addition, since severely injured people often cannot remember the circumstances surrounding an accident, the reverse onus compensates for this practical disadvantage.
Many of us are unaware of the reverse onus' existence and application to bike/car crashes. Too often I hear from cyclists involved in crashes with cars:
“I thought the crash was my fault, so I didn’t do anything about it."
Cyclists must be aware that even though you may think you are at fault, the law in Ontario could lead to a finding that crash was the car driver's fault, or at least partially. At a minimum your are always entitled to no fault Accident Benefits - read more here.
I recently reviewed and wrote a legal paper about Ontario court cases dealing with the reverse onus for the Ontario Trial Lawyers Association 2019 Fall Conference. I will this post the paper when I can. But first, I want to ensure my fellow cyclists are aware of the reverse onus and provide some examples of how it has been applied to bike/car crashes in Ontario.
Barniske v. Mohamed, 2003 CanLII 15942 (ON SC)
Eric Barniske was hit by a car at the Bloor and Parliament intersection in Toronto. Eric was in the bicycle lane next to the curb when he was struck by a right turning car. This same thing happened to me.
Because of the reverse onus it was up to the car driver to satisfy the judge that the crash was not her fault. Her evidence was unclear and evasive. The judge also found that it was improbable the cyclist would have suffered the injuries he did if one were to believe the car driver’s description of the crash.
The judge clearly stated that the injured cyclist need only prove the crash occurred and caused his damages. The onus was on the car driver to prove she was not at fault and she failed to do that. The car driver was found to be 100% responsible for the cyclist's damages.
Pelletier v. Ontario, 2013 ONSC 6898
In another bike/car crash case in Orillia, Jerry Pelletier was hit on his bike by an OPP cruiser in a crosswalk on the night of June 13, 2008.
In this case the judge made several findings against the cyclist. He said that the cyclist was illegally cycling in a crosswalk, had come into the crosswalk from a dark area, was wearing dark clothing, and was not using bike lights.
The judge also made findings against the OPP officer, including that his evidence was contradictory, the intersection was well lit, the cyclist was visible prior to the crash, and that the officer ought to have proceeded more carefully through a crosswalk.
The judge ultimately made a liability finding against the OPP officer. However, he split the responsibility for the crash at 60/40, as against the officer and cyclist. This percentage split meant that the cyclist’s damages and compensation were reduced by 40% because he was found to be 40% at fault for the crash.
These cases shed light on how the reverse onus can be applied differently depending on the facts of the case.
If a car driver can prove that a cyclist was partially liable for the crash, the cyclist will be found to be contributorily negligent. If this is the case, liability for the crash may be reduced proportionally. The reverse onus does not eliminate the possibility of contributory negligence.
The reverse onus can be an advantage to cyclists but ultimately the facts of how the crash happened matter most. Even with the reverse onus, a cyclist’s responsibility for the crash and payment of their damages may be impacted by their role in how the crash occurred.
Some judges have found 100% against car drivers, but in many cyclists have been found partially to blame for the crash.
Being partially at fault does not eliminate your right to claim against the driver, it only reduces the percentage of your potential damages award.
In my next article, I will list key factors often used by Ontario courts to find blame against cyclists.
I still want to stress a car driver is presumed to be at fault in a bike/car crash, not the cyclist. It always is worth talking to a lawyer if you are injured to ensure you are not inadvertently abandoning your legal right to sue the driver for injuring you.
Ride safe friends.
*The reverse onus applies to civil proceedings where a cyclist sues for damages resulting from a crash with a car.