Article by Michael Blinick and Michelle Legault
As Daylight Savings Time ends, so begins a new time for drivers in Ontario. Drivers must take extra care of their surroundings not only because of the weather but also because of reduced visibility due to less daylight. These shorter days and longer nights bring the risk of more motor vehicle accidents with pedestrians and cyclists.
One study estimates that pedestrians are three times more likely to be fatally struck by a vehicle in the weeks that follow the end of Daylight Savings Time.1 Accidents occur mostly because drivers have not adjusted their behaviours to account for less daylight during the morning and nighttime rush hours.2
Toronto is already noticing an increase in motor vehicle accidents involving pedestrians and cyclists. On November 3, 2017 – two days before Daylight Savings Time ended – there were ten motor vehicle accidents involving pedestrians, and one involving a cyclist.3 Nine of these incidents happened before 9:00 a.m.4
Last year, there were a reported six accidents involving pedestrians or cyclists on the Sunday that Daylight Savings Time ended.5 A further three accidents happened the following day.6 If past and recent statistics indicate what could happen over the next few weeks, then drivers and their insurers are likely to have an increased number of accidents to address.
Post-Accident: Steps for Insurers
First Party Insurers
First party insurers are unlikely to have claims from drivers involved in accidents with pedestrians or cyclists. Rather, the claims are likely to come from the pedestrians or cyclists themselves.
Accident benefits are available to all parties involved in a motor vehicle accident regardless of fault. A pedestrian or cyclist who has their own motor vehicle policy can receive benefits from their insurer. However, someone who does not have their own policy could be entitled to claim accident benefits as an unnamed insured through another policy.7The classic example is a college or university student who lives at home with a parent and would be insured under their policy. The pedestrian or cyclist could also claim benefits through the insurer of the driver involved in their accident.8 If the driver did not have insurance, then the pedestrian or cyclist would be able to claim through the Motor Vehicle Accident Claims Fund as a last resort.9
Given the various sources for accident benefits, insurers should investigate whether there could be a priority dispute. Investigation should begin as soon as the insurer receives a completed application for accident benefits by a cyclist or pedestrian. From that date, there is a 90-day limitation period for identifying other insurers and notifying them of the potential requirement to pay accident benefits.10 An insurer would be wise to conduct an examination under oath (“EUO”) of the pedestrian or cyclist as soon as an application or notice of a claim is provided. The examination will create a better understanding of the different insurance policies available to respond to the accident and which insurer(s) should respond.
If a cyclist is not at fault for an accident, then property damage to their bicycle can also be covered by the driver’s insurer.11However, some cyclists have coverage for their bicycles through home insurance policies.12 A cyclist’s own insurance would thus likely be the first resort for coverage regarding any property damage.
Third Party Insurers
Third party insurers are likely to have tort claims arising from accidents with pedestrian and cyclists. There are certain points about liability and damages with these kinds of claims that will be important for insurers to remember.
On liability, insurers should be aware of the “reverse onus” imposed on drivers involved in collisions with pedestrians or cyclists. The Highway Traffic Act states that a driver who collides with these individuals must prove that their negligence did not cause the collision.13 In other words, a pedestrian or cyclist plaintiff does not need to prove negligence on a balance of probabilities, as is the usual onus in civil cases. This “reverse onus” situation underscores the importance of drivers gathering evidence when an accident first happens. Photographs, statements, and electronic data can help prove whether a driver was negligent in the particular circumstances.
On damages, insurers should be aware of the kinds of injuries that pedestrians and cyclists experience. While many experience objective, orthopedic injuries such as fractures and broken bones, many also suffer significant soft tissue injuries. These injuries are more difficult to identify and can lead to chronic pain issues over time. Concussions are also common injuries that are difficult to detect and diagnose. The science around concussions and their long-term effects is still largely developing. As such, insurers should be aware of the possibilities for different kinds of damages and seek out appropriate medical examinations for pedestrian and cyclist plaintiffs. Any evidence about a plaintiff’s accident-related injuries can help determine if they meet the tort threshold for damages should the claim go to trial.
Post-Accident: Steps for Drivers
Despite taking extra care, some drivers will find themselves involved in accidents with pedestrians or cyclists over the next few weeks.
If an accident happens, the first step is to make sure the pedestrian or cyclist gets appropriate medical attention. Call an ambulance if one is required or requested.
Given the reverse onus on drivers in the circumstances, the next step is to gather as much evidence as possible about the accident. Overall, there needs to be enough evidence to meet the reverse onus and disprove negligence. Write a statement about what happened, and take photographs of the accident scene. Photographs of damage to any vehicles and bicycles are also helpful. If there were any witnesses, ask for their version of the events and contact information. If possible, have the witnesses write all of this information down. Data from more modern vehicles and equipment can also be of assistance. Save any dashcam videos and Electronic Control Module (“ECM”) or “black box” data from any vehicles before they are moved from the accident site. Any camera footage from nearby buildings or parking lots should also be requested and saved.
Any accident that involves more than $2,000 of property damage or personal injury must also be reported to the police.14 Although damages or injuries may not seem severe, drivers should err on the side of caution and report accidents at the nearest collision reporting centre.
Last, drivers should also report any accidents to their motor vehicle insurers. While a driver may not have claims for property damage or accident benefits, as outlined above, the pedestrian or cyclist involved could have these claims through the driver’s insurer.
With reduced daylight hours, there is a greater need for drivers to be aware of the pedestrians and cyclists that share the roads. While prevention is the most important first step, drivers and their insurers should be aware of what other steps can be taken if an accident occurs. Information about how to address injuries, property damage, and liability will all be useful if an accident leads an insurance claim or legal dispute.
See footnotes at Mondaq
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.