Q: I was hurt in a car accident riding my bike in downtown Kingston. I don’t know how the accident happened. Can I still sue? What can I recover?
A: Yes, you can still sue the driver who hit you even though you do not know how the accident happened. In Ontario, when a cyclist is hit by a car or truck, the driver of the car or truck has the burden to prove that they were not at fault. This is called “reverse onus” pursuant to Ontario’s Highway Traffic Act.
In other words, the driver who hits a cyclist is presumed to be at fault, or the collision is presumed to be the result of the driver’s negligence. Therefore, in your situation, even though you don’t know how the accident happened, the fact that you were hit by a car creates a presumption that the collision was caused by the driver’s negligence. Therefore, you only have to prove that the car accident occurred and that the car accident caused you to suffer injuries/damages.
However, if the driver can disprove his negligence, then he will not be held liable for your injuries. A driver’s statement that you were at fault is not going to disprove his negligence. The driver has to come up with substantiated evidence that you were at fault.
Related: Ontario Pedestrian-Car Accident Law-Who is at Fault After a Pedestrian is Hit by a Car or Truck?
In addition to filing a claim or lawsuit against the driver who hit you, you may be entitled to receive accident benefits from your own car insurance company or the driver’s car insurance company.
If you own a car and are insured, you can file an accident benefits claim with your own car insurance company. This may seem odd because you were not injured while driving a car and also because the accident was not your fault. However, Ontario insurance law requires auto insurance policies to provide accident benefits to insured drivers who are injured by motor vehicles while riding their bicycles or while walking. In addition, the no fault principle provides that regardless of who caused the accident, the injured insured driver/cyclist/pedestrian’s own car insurance company provides accident benefits. Some of the benefits include:
- medical and rehabilitation care benefits,
- income replacement benefits, and
- caregiver benefits.
If you do not own a car, you may receive accident benefits from the insurance company of the driver that hit you.
The auto insurance laws in Ontario are complex and confusing. As such, it is important to talk to a lawyer about filing an accident benefits claim with your car insurance company and a lawsuit against the driver who hit you.
We offer free initial consultations. Feel free to call and schedule a free case evaluation. 866-384-5886