Toronto Faces Personal Injury Trial Over Bicycle Accident

According to the Canadian Pediatric Society (CPS), using a helmet can significantly reduce your risk of serious injury in a bicycle accident. In fact, CPS said that research showed helmets “reduce the risk of head and brain injuries by about 69%, severe brain injuries by 74% and facial injuries by 65%.”

Yet even these numbers leave a substantial margin for injury. That is to say, simply wearing a helmet is no guarantee of protection in the event of a sudden fall caused by a bicycle colliding with another object. If that collision is caused by third-party negligence, the injured cyclist may have a claim for damages under Ontario law.

The Details of the Bicycle Accident

On March 18, 2019, an Ontario Superior Court judge declined to prematurely end a lawsuit brought by the victim of a 2008 bicycle accident against both the City of Toronto, as well as a cross-claim made by the City against the Toronto Terminal Railway Company. The case centres on the plaintiff’s claim that she was injured due to a defectively designed rail crossing. The defendants dispute this.

Here is a brief explanation of the facts as presented to the Court at summary judgment. On the morning of November 4, 2008, sometime between 7:30 and 8:00 a.m., the plaintiff was riding her bicycle on the Lower Don Recreation Trail, a bicycle pathway through downtown Toronto. More precisely, the plaintiff was riding westbound on the trail near the intersection of Lake Shore Boulevard East and Carlaw Avenue. There is also a railroad track that runs up the median of Lake Shore Boulevard before crossing both the westbound lane and the bicycle path.

This crossing was the location of the plaintiff’s accident. As Justice Edward M. Morgan noted in his ruling, the railroad tracks cross the bicycle path “at an approximately 15-degree angle,” which is “awkward” given that this forms a “groove which can catch the narrow bicycle wheel and topple the bicycle.” In an attempt to avoid this, the plaintiff said she “turned her wheel as she approached.” The idea was to create “something closer to a 90 degree angle” between the bicycle and the railroad tracks, which was considered best practices for this type of obstacle.

Unfortunately, as the plaintiff made her crossing, the wheel of her bicycle slipped on a “strip of rubber padding” that “abuts the metal track itself.” This caused the plaintiff to fall. In the process, her bicycle helmet cracked. The plaintiff apparently sustained a traumatic brain injury, as even more than 10 years later she “continues to experience a variety of symptoms, including physical problems as well as memory loss, anxiety, difficulty concentrating, sleeping, and speaking,” according to Justice Morgan.

The Battle of the Expert Witnesses

In support of her subsequent personal injury lawsuit against the city, the plaintiff presented an expert report prepared by Scott P.W. Walters. His report said the 15-degree angle was a “design flaw which ought to have been avoided.” Walters said the railroad crossing did not meet Ontario’s overall design guidelines for bicycle pathways, and that it was “well recognized by bicycle safety experts” that 15 degrees was an unsafe angle. Walters also pointed out that there were “no roadway markings for the bicycle path at the railway crossing” where the accident occurred, nor even a sign to warn bicyclists that they were approaching a track. Ultimately, Walters said the city was responsible for the “substandard design, the negligent construction and maintenance of the tracks and adjacent padding, and the absence of necessary signage.”

In response, the city presented the testimony of its own expert, who not surprisingly argued that Walters’ conclusions regarding defects in the track design were “unreasonable,” as there was no way to design the crossing that would allow for a safer 90-degree angle. As Justice Morgan noted, the city’s expert did not personally visit the site of the accident. Walters did.

Additionally, the city tried to bolster its own expert’s conclusion through the testimony of one of its own employees, the head of Toronto’s infrastructure management department. The employee testified that in her professional judgment, the rubber padding was actually the best way to “provide a safe transition from the trail to the railway track crossing,” and in fact, bicycle accidents at that same crossing increased after the city removed the padding in 2014.

While Justice Morgan took note of the employee’s views, he also explained that she was not qualified as an objective expert witness. Given the “irreconcilably conflicting views” of the properly qualified experts in this case, it would be inappropriate to grant summary judgment as the city requested.

The City’s Cross-Claim

Justice Morgan also declined to dismiss the city’s cross-claim against the railway that operated the tracks in question. The Court noted the plaintiff already released her own potential claim against the Railway. But the city maintained it has the right to seek “contribution and indemnity,” i.e., reimbursement from the railway for its share of responsibility for the accident. For its part, the railway argued it had nothing to do with the design of either the bicycle path or the railroad crossing–that was purely the city’s doing–and that according to the plaintiff, the accident occurred when her bicycle slipped on the rubber padding, not the tracks themselves.

Justice Morgan said it was too early in the litigation to let the railway off the hook. For one thing, it was necessary for a trial court to first decide whether the plaintiff’s underlying claim against the city was viable. Accordingly, Justice Morgan declined to dismiss the cross-claim.

Contact Preszler Injury Lawyers Today if You Have Been Injured in a Toronto Bicycle Accident

Bicycle accidents can often raise complex legal questions, especially when a municipality’s liability is at issue. That is why it is imperative you speak with a qualified Toronto personal injury lawyer following any type of accident. Contact the Preszler Injury Lawyers today to schedule a free, no-obligation consultation with one of our lawyers.

Sources:

• https://www.cps.ca/en/status-report/bicycle-helmet-legislation
• https://www.canlii.org/en/on/onsc/doc/2019/2019onsc1720/2019onsc1720.html