What Is a Pedestrian Accident?
A pedestrian accident is any accident in which a vehicle strikes a person who is not in a vehicle—in other words, someone who is on foot. A pedestrian can be walking, jogging, hiking, or even sitting or lying in a roadway. A pedestrian is also anyone who is hit by a car while on skates, a skateboard, scooter, or in a wheelchair. Although different laws may apply to each, pedestrian accidents include people being hit by cars on public or private roadways.
Toronto police define a pedestrian as any person who is not on a bike or in a vehicle, regardless of what the person is doing (although in most situations, and in some studies, bicyclists are counted as pedestrians).
How Do Pedestrian Accidents Occur?
Pedestrian accidents can happen in intersections, parking lots, crosswalks, or in areas where people cross streets without a marked crosswalk.
Cars often ignore street signs or traffic signals and collide with people lawfully crossing the street at a marked crosswalk. Cars may hit pedestrians when they spin out of control, such as when one vehicle hits another and pushes it into an area where people are walking or riding their bicycles. Speed also plays a factor, causing drivers to hit pedestrians who may lawfully be on sidewalks or in crosswalks.
In some cases, cars may strike pedestrians who are not where they should be. For example, people may cross a street in an area without a lawfully marked crosswalk. Even in these cases, a driver can be found negligent if the driver could have seen the pedestrian and avoided the accident but did not.
Dark conditions can contribute to pedestrian accidents, such as on poorly lit roadways where people may jog, or roadsides where people may be tending to a broken-down vehicles or awaiting emergency responder assistance.
Because pedestrians move more slowly than cars, distracted drivers often strike pedestrians. It only takes a few seconds for a distracted driver to take his or her eyes off the road, and miss a person trying to cross the street. This is especially true in areas where people tend to walk, such as downtown areas or parking lots. A car travelling just 50 kph per hour can go 44 feet in a single second. A car going 100 kph per hour can travel 88 feet every second.
Sadly, drinking and driving is still a major factor in Ontario pedestrian accidents. An impaired motorist may swerve off a roadway into pedestrians or ignore traffic control signals.
How Common Are Pedestrian Accidents?
According to the City of Toronto, there were 40 pedestrian deaths in 2018. That was up from 2017, when there were 42 pedestrian deaths caused by car accidents in Toronto alone. Additionally, there were eight cyclist deaths during these same two years.
These are just deaths—they do not account for accidents in which pedestrians were injured but survived. When the city statistics included those who were seriously injured, the accident numbers skyrocketed to 220 accidents in 2018, up from 220 in 2017.
Although the city of Toronto does not include people on bicycles as a pedestrian when compiling statistics, cyclists face many of the same dangers as pedestrians. In 2018, there were 40 cyclists injured or killed, down from 55 in 2017.
In a survey of all of Canada, including Ontario, the Canadian Government found that in 2016, there were 334 pedestrians killed in accidents involving a motor vehicle.
Including injuries, from 2011 to 2016, over 900 pedestrians were killed or seriously injured. City officials in Toronto called the number of pedestrian accidents a “crisis” in 2018, prompting an $87 million project called “Vision Zero” designed to reduce the number of pedestrian accidents.
What Is My Timeframe for Filing a Claim After a Pedestrian Accident?
A pedestrian hit by a car has two years from the date of an accident to file a claim. This may seem like a long time, but it can pass very quickly.
Remember that your lawyer may need to do an investigation of the accident, find or identify witnesses, or gather your medical records before filing a lawsuit, which means that you should not wait until just before the two-year deadline to see a lawyer after a pedestrian accident. There are potential ways to extend the limitation period, but you should not take chances with limitation periods.
After an accident, you may be preoccupied with your medical treatment, getting over your disabilities, or figuring out how you will pay your bills if you are out of work. All of this is understandable, but it can easily lead to missing or forgetting the two-year deadline. A personal injury lawyer should be retained as quickly after the accident as possible. He or she can make sure that if you have a case for damages, it gets filed in a timely manner.
The two-year deadline applies to the amount of time you have to file a lawsuit. Other, shorter deadlines may apply to make claims with insurance companies or government agencies. For example, you only have seven days from the date of your accident to file a claim with your no-fault insurance. You also have only 120 days to inform a negligent party that you intend to file a lawsuit against them if you have suffered serious injury. Your insurance policy may have other deadlines that must be followed for you to obtain benefits after an accident. An accident benefits claim should be filed within 30 days of the accident.
Will I Need to Provide a Witness?
It is almost always a good idea to have a witness who will explain how he or she saw the accident occur.
The first witness (other than you) can and should be the driver of the car involved in your pedestrian accident. Other witnesses may include passengers in the car, or people standing around who saw the accident. If you can, you should get basic contact information from anyone who may have seen the accident, and ask people surrounding you to remain at the scene so that they can be interviewed by police officers.
In Ontario, when a car hits a pedestrian, there is a presumption that the driver of the car is at fault. That means that the Court starts by assuming that the driver was negligent. In some cases, the driver will not contest this presumption, which lessens the need for witnesses.
However, a driver who hits a pedestrian can always provide evidence to refute the presumption of negligence. When you (the pedestrian) and the driver disagree about how the accident happened, and whose fault the accident is, a witness can be vital. Witness testimony can resolve factual disputes between parties and provide vital information that expert witnesses can use to come to their conclusions if they are needed in court.
When witnesses are known, they are often interviewed by police at the scene of the accident, and their information may be noted in a police report. Your injury lawyers will contact these individuals and, if needed, take their statements (or depositions), or possibly retain a private investigator to locate or identify witnesses to an accident.
Should I File a Police Report?
There are some occasions in which you must call the police to the scene of an auto accident. Any time you suspect the damage to all vehicles in the accident is more than $2,000, or that there has been a criminal violation, the police must be called. Criminal violations in Ontario can include driving under the influence of drugs or alcohol, or when a driver hits a pedestrian and then fails to stop at the accident scene.
However, whether or not a pedestrian is legally required to make a police report, it is always advisable to call the police and have an accident or police report filled out.
An accident report may be required for you to obtain needed insurance benefits after an accident. Some insurance companies may deny your claim or refusal to pay medical expenses for failing to report an accident to the police. If you did not report the accident, you will be required to prove that you were involved in an accident in other ways eg. hospital visit etc.
When police arrive they will interview anybody involved in the accident, note damage to any vehicles, and write down the contact information for any witnesses to the accident. The police report will note that the driver who hit you was present, but even if he or she is not (such as with a hit-and-run), a police report can still help you obtain uninsured motorist insurance benefits or funds through the Ontario government that are set up for hit-and-run accident victims.
In some cases, you may not be able to call the police or explain to the police what happened because you are being treated for serious injuries. You can and should still go to the police precinct and report the accident within 24 hours.
Am I Entitled to Statutory Accident Benefits (SABS) as a Pedestrian?
If you are injured as a pedestrian, you can obtain accident benefits from your own insurance policy, which will assist you in paying your medical expenses. You must utilize your own policy and make your claim through your insurance company’s own application for benefits. The only time you would make any claim for benefits through the driver’s policy is if you (as the pedestrian) do not have a vehicle that is insured.
Benefits include medical expenses, including prescriptions and rehabilitative care, up to $65,000. In catastrophic injury cases, the maximum jumps to $1 million. Benefits for injuries can include from $3,000 to $6,000 in monthly benefits for attendant care (someone to assist you with your personal and household maintenance). There are even benefits to pay for the expenses of family member visitors.
Insurance will also pay for a percentage of lost wages for two years after an accident if the claimant cannot do their own job. This can be extended for life if the claimant cannot perform any job that they are reasonably suited to perform. There are even benefits available for non-income earning individuals, students, and caregivers (optionally).
Although it is mandatory for drivers to have insurance, many people still drive on Ontario roadways uninsured. If you are injured in an accident as a pedestrian and you do not have insurance, and the driver who hit you is uninsured, you may be able to make a claim under the Motor Vehicle Accident Claims Fund. You can also make a claim with the fund if the other driver is unidentified, such as with a hit-and-run.
A pedestrian can make a claim against a negligent driver who causes an accident for additional damages over and above what any available accident benefits insurance has provided. Pedestrians must have sustained injuries that are considered permanent and serious impairments in order to successfully make a claim for pain and suffering and future health care expenses. Compensation for loss of income are not subject to the permanent and serious threshold.
I Was in a Bicycle Accident and I Am Not Able to Return to Work. What Type of Accident Benefits Could I Claim?
Those who are hit by a car while on their bicycles are considered pedestrians and entitled to the same kinds of benefitsthat pedestrians would be. They also are entitled to file a lawsuit for damages the same way that a pedestrian would be.
Just as it does with people on foot, no-fault insurance will pay for both medical and rehabilitation expenses, lost wages and other specified benefits. The accident benefits insurer will provide 70% of your lost gross income, up to $400 per week if you are no longer able to return to your line of work after an accident. You must have been employed at the time of the accident, were on Employment Insurance or were employed for 26 of the previous 52 weeks before the accident.
These benefits are available for up to two years after an accident. However, if you are unable to work in any profession that you are trained to do (not just your specific prior employment), the two-year maximum can be extended to life.
You do not have to be a wage earner to obtain lost wages. Even non-earners can qualify for a benefit of $185 per week, although non-earners must wait four weeks after the accident before qualifying for benefits for accidents that occurred after June 1, 2016.
All of these amounts can be increased if the pedestrian or bicyclist has a higher insurance policy. Loss of income, future health care expenses and pain and suffering may be recovered by filing a lawsuit against a driver who negligently caused an accident.
What if I Am a Family Member of a Pedestrian or Bicyclist Who Was Killed?
In an accident in which a pedestrian or bicyclist is killed by a motor vehicle in Ontario, death benefits are available to family members of the deceased through the same no-fault insurance statutory accident benefits that would pay for medical expenses. Just like an accident when the pedestrian survives, the pedestrian’s family will look to their own insurance company for these death benefits, and if no insurance is available, the claim will be made through the driver’s insurance.
Spouses of a deceased pedestrian or bicyclist can receive $25,000, with other dependents receiving $10,000 each. If there is no spouse, an additional $25,000 is available to dependents for them to share, in addition to the $10,000 each will receive. However, these amounts can be increased if additional insurance is purchased beforehand.
In addition, $6,000 in benefits to help pay for funeral costs and expenses is available through no fault insurance.
In many cases, it is obvious that an accident causes a death. However, in other cases, it may not be so clear. For example, someone may be hit by a car and linger in a coma for many months before eventually passing way.
In order for the family of the deceased to receive benefits, the death must be caused by the accident, and death must occur within 180 days of the accident. However, if the deceased was continuously disabled as a result of the accident, then so long as death occurs within 156 weeks of the accident, death benefits will be available.
In addition to insurance benefits, if the driver was negligent in causing the death, the family members can bring a lawsuit against the driver for additional compensation. Damages in these cases can include the loss of guidance, care, and companionship, as well as the value of lost net future income of the deceased among other things.
Should I Go Through My Own Insurance for Accident Benefits or Should I Pursue the Driver’s Insurance Company?
Pedestrians must go through their own insurance company if they own a vehicle and the vehicle is insured (as it legally must be) even though the vehicle was not in use at the time of the accident. This may seem counterintuitive, but this rule is based on Ontario’s no-fault insurance system. This system provides benefits to anyone, regardless of who caused the accident.
The system is designed to allow people quick and easy access to insurance benefits to help them access medical care, lost wages, rehabilitative care, or other needs after an accident without having to sue anyone, or wait for lawsuits or settlements (although in cases in which the driver of the vehicle is negligent, a pedestrian can also sue for additional damages).
In some cases, a pedestrian can make a claim through the driver’s insurance. This is only when the pedestrian does not own a vehicle that is insured under the no-fault system. If neither the pedestrian or the driver had proper insurance, claims can be made through Ontario’s Motor Vehicle Accident Fund.
Regardless of whose insurance is being used, a victim should make a claim within seven days, and 30 days to fill out an accident benefits form.
In the event that the driver was negligent, a pedestrian may have a right to additional compensation by suing the insurer of the driver. These are not insurance benefits, but legal damages. These damages can exceed the amounts paid by any insurance. Pedestrians who have suffered major, disfiguring, or severe injuries can pursue lawsuits.
The Driver Who Hit Me Left the Scene. What Should I Do?
The first thing that you should do after a hit-and-run accident is contact the police, as leaving the scene of an accident when a pedestrian has been hit is a crime. If you are unable to contact the police because of your medical condition, you should make a police report within 24 hours after the accident.
If possible, ask witnesses if they saw the accident, or remember anything about it. Even minor details such as the make, model, or color of the vehicle, or which direction the vehicle was going, can be helpful.
Photos of anything related to the accident are very important. Take pictures of blood on the roadway, your own injuries, or damage to property (such as a bike if you were riding one, or to another structure if the vehicle hit something in addition to hitting you). This will help you demonstrate that the accident was caused by a separate vehicle.
Because there is no other known driver, pedestrians must obtain insurance benefits through their own insurance company. If you do not own a vehicle that must be and which is insured claims can be made through Ontario’s Motor Vehicle Accident Claims Fund.
Your insurance company could deny benefits if an accident report is not filled out 24 hours after an accident.
In most cases, you may be able to file a lawsuit even though the other driver is not identified. In a hit-and-run accident, the lawsuit is brought against your own unidentified/uninsured motorist coverage, which “stands in the shoes” of the phantom hit-and-run driver.