May 6, 2015

As the weather (hopefully) gets warmer, people across the province are dusting off their bicycles and getting ready for another season on the road. Cycling has enjoyed a real renaissance. It is a physically and psychologically healthy way to commute. And, as congestion worsens, cycling is becoming a more efficient alternative.Unfortunately, many cities have lagged in their response to make cycling safer. Bicyclists have become a focus of accidents involving pedestrians, buses, streetcars and motor vehicles. This dark side to this new trend challenges us all to make sure safety and common sense are not ignored.

While city infrastructure has lagged behind, the law has not. Legislation and case law have developed to ensure cyclists are protected, and if they are hurt, to ensure that they are fairly compensated.

For example, Thomson Rogers acted for a cyclist who was involved in a collision with a car while cycling home from a tavern. This fellow suffered a traumatic brain injury and will likely never work again. The defense attempted to lessen its liability on the basis that our client had been drinking and was not wearing a helmet. As an aside, I feel compelled to say, “ALWAYS WEAR A HELMET”.

Despite the defense’s arguments, the law was on our side. First, cyclists are treated as pedestrians, not as motorists. This distinction entitles cyclists to rely on what is referred to as the “reverse onus” provision of the Highway Traffic Act. In layman’s terms, this means that the law presumes that the motorist, not the cyclist, is at fault. Secondly, the law recognizes that bike helmets are meant to protect cyclists from head injuries resulting from a fall. There is not a bicycle helmet on the market that can prevent a brain injury if the cyclist is hit by a motor vehicle travelling at a high speed. Thirdly, the law accepts the fact that cyclists are not saints: some have been drinking, some cycle at night without reflective gear, and, some forget to wear their helmets. Nonetheless, it is not open season on cyclists. Motorists, who hit them, will be held liable.

As cycling becomes more popular and city infrastructure fails to safely separate cyclists from motor vehicles, more and more cyclists will be victims of motor vehicle accidents. It is important to know your rights and when in doubt, call a lawyer.

Groups like Cycle Toronto are engaged in important work to make cycling safer. In the meantime, it is up to all of us (both as cyclists and drivers) to do everything we can to prevent accidents before they happen.

And again… “WEAR A HELMET”.

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