Motorcycles and the Law: Know Your Legal Rights
Motorcycles require a different type of license to drive than a car or SUV. Nevertheless, the rules of Ontario’s Highway Traffic Act apply equally to motorized vehicles, whether a car, motorcycle, bus, or truck.
Motorcycles are also unique in that they present certain higher risks to operate than other motor vehicle types. Aside from being more vulnerable in accidents with other vehicles, motorcyclists are also at higher risk of accident and injury when it comes to poorly maintained roads and hazardous construction zones. For example, repaving laneways can cause grade variations that affect a motorcycle when changing lanes, without endangering drivers of ordinary cars.
Given the inherent risks of driving a motorcycle, it is important to understand your rights to compensation for your losses for injuries when involved in an accident as a motorcyclist.
Seeking Compensation for Your Injuries
Although the consequences are often more dire for a motorcyclist than another motorist in any given accident scenario, who is at fault will be assessed similarly regardless of vehicle type.
If the consequences are significant, you may be able to seek compensation for your losses. A claim against the at fault-driver will be covered by the third-party liability provisions of his or her insurance policy.
Where there is disagreement about the amount of compensation you are entitled to (which is unfortunately often the case), or about who is liable, your personal injury lawyer can help you prosecute a legal action against the at-fault driver. The types of losses you can seek to recover include:
• property damage to your vehicle/motorcycle
• non-pecuniary general damages (compensation for “pain and suffering”)
• income loss and projected future income loss resulting from your injuries
• medical and rehabilitation expenses associated with your injuries
• housekeeping and caregiving/attendant care expenses, if required
• “out of pocket expenses” incurred due to the accident and your injuries (e.g., costs of having to take taxis to medical appointments)
Liability of the other driver will sometimes be very clear — for example, where the driver rear-ends you, is charged with a Highway Traffic Act Offence (and you are not).
While it is relieving to know that your losses may be recoverable, the risk of a finding of contributory negligence against a motorcyclist is high, even where the other driver is at fault. If contributory negligence applies, it means that, even where you did not cause the accident, you failed to take steps which could have lessened your injuries. An award of damages made at trial may be reduced by a certain amount for failing to take appropriate precautions, often in the range of 15 to 35 percent, depending on the circumstances.
In an ordinary vehicle, the most common form of contributory negligence is failing to wear a seatbelt. However, on a motorcycle, there are several other precautions you must take to avoid being found contributorily negligent. For example, strict laws govern helmet use and the use of personal audio devices (speakers/earphones) while riding a motorcycle. Not only can you be fined for failing to adhere to the rules, failing to take precautions can lead to a contributory negligence finding on your part in a lawsuit. Similarly, not wearing appropriate protective clothing may in a contributory negligence finding if you end up with serious lacerations, road rash or burns.
Nevertheless, the defense needs to prove that taking those precautions would have lessened your injuries and losses in the circumstances. For example, if you did not wear protective boots, but did not injure your feet, no reduction in compensation can be expected for that since wearing protective boots would not have changed the nature of your injuries.
Successful Legal Actions Brought by Motorcyclists
While motorcyclist often end up with severe injuries in collisions, there is no “penalty” for the inherent risks of driving a motorcycle, provided that all reasonable precautions are taken.
In Foniciello, et al. v Bendall and Acculine, et al., 2016 ONSC 1119 (CanLII), a motorcyclist was struck by a van at an intersection where a road construction company was making new pavement markings. As a combined result of the van in failing to slow down and the failure of the pavement marking company to adequately mark its construction zone and the presence of parked vehicles in the roadway, the motorcyclist was struck and severely injured, suffering a serious traumatic brain injury. At trial, the motorcyclist was awarded more than $3.5 million, with significant amounts attributable to medical care and attendant care.
In Kennedy v. Waterloo County Board of Education, 1999 CanLII 3746 (ON CA), the court reversed the trial judge’s finding that a municipal school board was not liable for the catastrophic injuries of a student who crashed his motorcycle into hazardous bollards on school property. The bollards remained at the school for budgetary reasons despite being recognized as a hazard. Although municipalities and public bodies are subject to a different standard of care than private property owners (a standard of care that considers budgetary constraints and operational policy decisions made by the public body), the appellate court found that the school board had not met the standard of care in the circumstances and ought to have removed the bollards.
Get a Free Consultation with a Motorcycle Accident Lawyer at Gillis Injury Law in Richmond Hill
If you or a loved one have been injured in a motorcycle accident, speak to an accident lawyer in Richmond Hill for a consultation about compensation. We will access your case, considering all the factors and the details that would impact the settlement or
award. Contact us today at 905-709-7447.