Cyclists, unlike drivers, are not required to have insurance. However, a cyclist injured in a collision with a motor vehicle has legal rights that include the ability to receive accident benefits and compensation. There are several ways in which a cyclist can obtain appropriate payment for their injuries and financial losses.
Each cyclist’s circumstances are unique. However, generally speaking, a cyclist who has been hit by a motor vehicle can recover compensation from one of the following sources:
- Their own motor vehicle insurance;
- The motor vehicle insurance of their spouse, or someone on whom they are dependent;
- The insurance of any car involved in the collision; or
- The Ontario Motor Vehicle Accident Claims Fund.
Accident Benefits
When a cyclist is struck by a car, they are entitled to claim automobile insurance accident benefits, regardless of who was at fault. These benefits include a limited amount of money for lost income, medical treatments, rehabilitation services, and attendant care. Which insurance company pays these benefits will depend on whether or not the cyclist is insured under a policy of motor vehicle insurance.
A cyclist’s own auto insurer is responsible for funding these benefits if they are injured in an accident. If the cyclist does not have their own auto insurance, then any policy of auto insurance under which they are a listed driver would be liable. If the cyclist is not a listed driver, then their spouse’s insurance, or the insurance of anyone the cyclist is dependent on, would be liable to pay. If the cyclist is not an insured under any policy of auto insurance, then the insurance company of the motor vehicle driver would pay the benefits.
Claim for Compensation
Accident benefits are not to be confused with a claim for compensation. When a negligently driven motor vehicle hits and injures a cyclist, the cyclist can sue the driver and owner of the vehicle for compensation; that is monetary damages.
Under the Highway Traffic Act, R.S.O. 1990, c. H.8, a person making a claim for damages has the onus of establishing that their injuries are the result of the negligent driving of someone else. However, when a pedestrian is hit by a motor vehicle, and a cyclist is considered to be a pedestrian, it is the driver that must prove that the collision “did not arise through the negligence or improper conduct of the owner or driver of the motor vehicle.” The “reverse onus” on the driver to disprove improper conduct gives a cyclist an important advantage in recovering compensation for their injuries.
The at-fault driver’s insurance company will pay the injured cyclist compensation up to the policy limits. If the damages exceed the policy limits, the cyclist may be able to recover the shortfall from their own auto insurer if the limits under their policy are higher than the limits under the at-fault driver’s policy.
If the at-fault driver did not have insurance, or left the scene and cannot be identified, then the cyclist can recover their damages from any policy under which they are an insured if that insurance includes the standard Family Protection Coverage OPCF-44R provision.
If an injured cyclist is injured by an uninsured or unidentified driver and does not have access to personal or family insurance, then, as a last resort, the Ontario government covers their damages through the Ontario Motor Vehicle Accident Claims Fund. Unfortunately, this only provides maximum compensation of $200,000.00. In these circumstances, the Ontario Motor Vehicle Accident Claims Fund would also be responsible for paying any accident benefits to claim.
Conclusion
Even though cyclists are not required to have accident insurance, they have significant legal protection if they are struck by a motor vehicle. Depending on their circumstances they have several ways to obtain accident benefits and seek appropriate compensation for their injuries.
This blog post was written by Edward (Ted) Masters, a member of the Disability Insurance Claims and Personal Injury teams. He can be reached at 613-566-2064 or at ted.masters@mannlawyers.com.
