What Damages Can I Seek If I am Unable to Return to Work Due to a Bicycle Accident?

Bicycle accidents in Ontario are frequently the result of a negligent motorist who fails to keep a proper lookout for bicycles or pedestrians. From a legal standpoint, the bicyclist must follow the same rules as a car accident victim when seeking compensation for his or her injuries. In other words, the bicyclist must first file a claim under his or her own insurance policy to receive statutory accident benefits.

Depending on the severity of the injuries, the bicyclist may also be entitled to file a personal injury claim directly against the negligent motorist. There are two important considerations here. First, the bicyclist needs to determine if his or her potential claim for non-pecuniary damages–i.e., compensation for pain and suffering–is likely to exceed Ontario’s statutory deductible. Second, the bicyclist needs to ascertain if there is sufficient evidence that he or she sustained either a “permanent serious disfigurement” or a “permanent serious impairment of an important bodily function” as a result of the accident.

Case Study: St. Marthe v. O’Connor

A recent decision by an Ontario Superior Court justice, St. Marthe v. O’Connor, offers a useful illustration of how these legal principles work in practice. This personal injury case was the result of a November 2011 bicycle accident in Toronto.

The plaintiff was traveling to work on his bicycle on the morning in question. He was riding westbound on Dupont Street. At that same time, the defendant was in his car, which was at the exit to a gas station on the north side of Dupont Street.

According to the plaintiff, he was “not sure” what the defendant planned to do in terms of pulling out onto Dupont Street. Exercising caution, the plaintiff said he removed his earbuds and made sure he was at “cruising speed” as he passed the gas station. However, once the plaintiff passed the exit, the defendant pulled out on to Dupont Street, striking the plaintiff’s bicycle and knocking the plaintiff to the ground. The plaintiff, who was not wearing a helmet, said he “stretched out his arms in an effort to break his fall.”

The plaintiff contacted his employer, who picked him up at the accident scene. Later than morning, the plaintiff went to the emergency department at St. Michael’s Hospital in Toronto, complaining of “back pain on his right side.” A nurse prescribed over-the-counter pain medication and discharged the plaintiff. Later, between December 2011 and April 2012, the plaintiff received several dozen physiotherapy and massage therapy treatments, all to try and relieve his ongoing pain.

In May 2014, more than two years after his bicycle accident, the plaintiff began a new job as a construction labourer. During the course of the next year, the plaintiff’s supervisor said he observed the plaintiff “having difficulty lifting equipment.” In general, the plaintiff was “physically struggling” to perform his duties. By November 2014, the plaintiff told his boss “that he could not do the job anymore.”

The Plaintiff’s Lawsuit and the Subsequent Trial

In July 2015, the plaintiff filed his personal injury lawsuit against the defendant. Based on medical assessments conducted a few months earlier, the plaintiff said he sustained permanent injuries in the accident, and as a result he was no longer able to work in his chosen field of construction.

Justice Patrick Hurley of Ontario Superior Court tried the case in November and December of 2018. A jury was initially called but later dismissed. The defence admitted liability for the accident itself, so Justice Hurley was tasked with determining the amount of the plaintiff’s damages.

Did the Plaintiff Wait Too Long to File His Bicycle Accident Personal Injury Claim?

Before assessing damages, Justice Hurley first disposed of the defence’s argument that the plaintiff’s entire claim was barred by Ontario’s two-year limitations period. As noted above, the accident itself took place in November 2011, but the plaintiff did not file his lawsuit until nearly four years later.

As Justice Hurley explained, the two-year clock does not start to run until the date he “knows that he has a substantial chance to succeed in recovering a judgment for damages.” This requires taking into account Ontario’s statutory deductible rule, as well as the requirement to demonstrate that the plaintiff sustained a “permanent or serious injury.”

Here, the plaintiff did not realize until late 2014 (at the earliest) that he may not be able to work in construction any longer due to his accident-related injuries. Since this was less than two years before the plaintiff filed his lawsuit, the claim was not barred.

Did the Plaintiff Suffer a “Permanent” Injury?

Next, Justice Hurley looked at whether the plaintiff actually proved that he suffered a “permanent, serious impairment of an important physical, mental or psychological function.” Essentially, the plaintiff’s case was that due to chronic pain, he could no longer work as a construction labourer, which qualified as a permanent impairment of an important physical function. The defendant maintained that the plaintiff was exaggerating the effects of his pain and that “his current condition is due to causes unrelated to the accident.”

Justice Hurley said he found the plaintiff’s testimony regarding his pain to be “credible.” He also noted the opinions of the medical experts in the case, who said there was “no effective treatment” for the plaintiff’s chronic pain; therapy and medication could only provide “transient relief.” This meant that the plaintiff needed to undergo vocational training to work a “sedentary” job that did not require much physical labour.

Ultimately, the judge awarded the plaintiff $32,016.67 in general damages for his pain and suffering (which is the net amount after taking the statutory deductible into account), $80,990 for his past loss of income, $47,040 for his estimated loss of future income, and $45,615.56 for estimated future housekeeping and home maintenance expenses.

Speak with a Qualified Toronto Bicycle Accident Lawyer Today

If you are seriously injured in a bicycle accident, it is important that you not only seek prompt medical attention, but also consult with a qualified Toronto personal injury lawyer. Contact the Preszler Injury Lawyers today to schedule a free, no-obligation consultation.

Source:

CanLII