Description

The following article was written by David W. Hay (http://www.rbs.ca/lawyers/hay.html). David is a litigator whose preferred areas of practice include personal injury, commercial, entertainment and insurance litigation. He has extensive experience in cycling advocacy work and has advised cyclists and cycling advocacy groups for years.

David's preferred areas of practice are: Personal Injury, Commercial, Entertainment and Insurance Litigation.

For Your Benefit

Cyclists often wonder whether or not they have any rights if they are injured in an accident with a motor vehicle and at fault for the accident. My answer is always the same. Of course they do.

A distinction must be made between the recovery of damages for personal injuries and the recovery of Statutory Benefits under the Insurance (Motor Vehicle) Act. Let me explain.

If you are involved as a cyclist in an accident, and the driver is wholly or partially at fault for the accident, you are entitled to bring a tort claim (civil wrong) claim against the driver. This claim is based on an allegation of negligence against the driver. If successful, you will be entitled to general damages (often referred to as "pain and suffering"), income loss, out of pocket expenses, and past and future care costs. However, let's assume you rear end a vehicle on your bike and sustain injuries. Assuming that the vehicle was at a proper stop when you crashed into it, you will almost be certainly be found wholly responsible for the accident. In that case, you are only entitled to what are known as Part 7 or "no-fault" benefits. Part 7 benefits are available to a cyclist who collides with a vehicle described in an owner's certificate and are payable regardless of fault. For that reason they are referred to as "no fault" benefits. Any cyclist injured in a collision with a vehicle can claim "no fault" benefits, provided the cyclist gives prompt notice to ICBC of the accident, and provides a written report of the accident to ICBC no later than 30 days from the date of the accident, and fills out a form with ICBC called a proof of claim within 90 days from the day of the accident.

No fault benefits include medical and rehabilitation expenses incurred by the cyclist as a result of the injury for necessary medical, surgical, dental, hospital, ambulance, professional nursing services, physical therapy, chiropractic treatment, occupational therapy, speech therapy etc. These are called "mandatory" benefits and the law provides ICBC with very little wiggle room.

ICBC also has discretion to pay "permissive" benefits. These are defined as benefits likely to promote the rehabilitation of the cyclist. Interestingly, funds to purchase a motor vehicle equipped as necessary for the injured person can be provided as permissive benefits, but there is no similar provision in the legislation for provision of a new bike or a repair of the old one. In my experience, where damages are claimed, ICBC will often provide funds to repair a bike in order to get the cyclist active again, but this will almost never occur if fault for the accident is a genuine issue.

Another very important category of benefits paid to employed cyclists are disability benefits. Again, if the cyclist is at fault for the accident, provided he or she meets the criteria of an employed person, (employment or engagement in a occupation for wages or profits for any six months during the twelve month period immediately preceding the date of the accident), entitlement to the lesser of $300.00 per week or 75% of the cyclist's average gross weekly earnings will be established. This benefit will be paid for the duration of the total disability, of for a 104 weeks (two years), whichever is shorter. If the injury continues to disable the cyclist beyond the two year period, benefits will continue for the duration of the disability. In serious accident cases these benefits can persist throughout the cyclists' life.

Given that ICBC is always considered a secondary insurer, cyclists are well advised to apply for employment insurance and disability benefits through other sources. These benefits are deductible from the ICBC no fault benefits, even if the cyclist did not apply for them.

Another interesting category of no fault benefits is homemaker benefits. A homemaker is defined as a male or female member of the household, who, without payment, does the majority of the housekeeping for the household. If an accident disables a cyclist substantially and continuously from performing most the household tasks, ICBC will pay the homemaker expenses incurred to hire someone else to do the housework.

No fault benefits are also naturally payable when the cyclist is able to establish fault on the part of the motorist. To avoid duplication of compensation, these benefits are deducted from the judgment awarded to the cyclist in the tort action.

Of course, the legislation provides a number of ways in which cyclists can disentitle themselves from benefits. Benefits are not payable when the bicycle is used for an illicit or prohibited trade or transportation, to escape or avoid arrest, in a race or speed test; riding while impaired (though I am unaware of any case that has tested this proposition) or if the cyclist gives a wilfully false statement material to the claim.

Disputes between ICBC and the cyclist as to whether or not a no fault benefit is payable are relatively common and the legislation relating to benefits is often misunderstood and misapplied. While this subject may not seem as exciting when considered in the abstract (i.e. while reading this article), the timely provision of these benefits can be critical to an injured cyclist's physical or mental state.