Appeal court sides with motorcyclist injured by unexpected hazard

By Paul Russell, LegalMatters Staff • The responsibility of municipalities to maintain roadways so they are safe for all vehicles has been reinforced by a recent Ontario Court of Appeal decision, says Ontario personal injury lawyer Joshua Goldberg.

“In Beardwood v. Hamilton (City), the court awarded substantial damages to a motorcyclist who was injured after he encountered a bump in the pavement while riding, causing him to lose control even though he was travelling at a low speed,” says Goldberg, principal of Joshua Goldberg Law.

A media report states the man was awarded $434,000.

According to court documents, David Beardwood required two surgeries after breaking his left tibia after his bike hit a “longitudinal discontinuity or lip in the pavement.”

His claim for damages was dismissed by the Superior Court of Justice, which ruled that “a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if … minimum standards [outlined in the Municipal Act] have been met.”

Judge found motorcyclist was 50 per cent responsible for crash

The judge also found that Beardwood was 50 per cent responsible for the crash, as the low rate of speed allowed him “an opportunity to observe the roadway and to adjust his approach if it was required. This was not a case of a high-speed manoeuvre done under pressure of heavy traffic in poor conditions.”

The appeal court judge disagreed, stating the trial judge made a “palpable and overriding error” in assuming the pavement met the minimum maintenance standards established by the Act.

The appellate court added that an expert witness for Beardwood had found that the bump in the pavement “was visible but not conspicuous.”

“This decision should give other motorcyclists reassurance that if they are injured due to the fault of others, they may be in line for compensation for their injuries,” Goldberg tells LegalMattersCanada.ca. “As the judgment notes, ‘If any fault can be attributed to the appellant for the accident, the percentage is negligible. We attribute 100 per cent of the fault to the respondent.’” 

Motorcycle ridership is up

According to the Statistics Canada summary Circumstances surrounding motorcycle fatalities in Canada, 2016 to 2020, the number of motorcycles registered for on-road use grew 2.7 per cent from 2017 to 2020.

“Across Canada, people ride motorcycles for both transportation and recreation,” the summary states. “While these vehicles are an increasingly popular form of transport, there is associated potential for injury and death for riders.”

Citing numbers from Transport Canada, the document notes that 242 motorcycle and moped riders (both drivers and passengers) died in 2020.

“This is the highest number of deaths recorded in over 20 years and a 24 per cent increase from 195 deaths in 2019 … [that] may in part be explained by the increase in number and rate of motorcyclist deaths among riders aged 25 to 39 years and 60 to 79 years,” it adds.

10 per cent of all road user deaths

The summary adds that while motorcyclists represent just two per cent of licensed drivers, “they account for more than 10 per cent of all road user deaths.”

The summary cites information from the Canadian Coroner and Medical Examiner Database (CCMED). It compiles information after coroners and medical examiners investigate deaths when the victim was on a motorcycle at the time of the fatal event.

“Understanding the circumstances surrounding motorcycle fatalities is an important starting point to inform the continued development and implementation of safety measures to protect the lives of Canadians,” the CCMED report states.

• Why settlement is better than litigation in personal injury cases
• Every successful personal injury case has one key element
• Know the deadlines when pursuing a personal injury case

According to the document, approximately one in nine motorcycle fatalities involved the deceased riding with another person at the time of the collision.

“Carrying a passenger on a motorcycle increases the weight, which affects the vehicle’s handling and balance, and the driver must adapt accordingly,” the CCMED report states.

“Riders in the driver’s position accounted for 84 per cent of all motorcycle fatalities, while six per cent were passengers on the motorcycle (the position of the deceased rider was not specified in 10 per cent of cases),” it adds.

Gender and age are factors

“The majority of motorcyclists are men, so it is understandable that CCMED information shows that men were involved in seven times more fatal accidents than females,” says Goldberg.

“The information also shows that riders between the ages of 40 to 59 years of age were most likely to be in fatal accidents, followed by the 25 to 39-year-old demographic,” he adds.

According to the StatsCan summary, just over half of motorcycle fatalities resulted from a collision between two or more vehicles while 38 percent involved just the motorcyclist.

“The most common collision type among single-motorcycle fatalities was colliding with a stationary object or leaving the road,” it states.

“As with accidents involving any type of vehicle, alcohol and drug use is a common factor in motorcycle crashes,” says Goldberg.

The StatsCan document backs that up, noting that among young drivers (20 to 34 years), 44 per cent were impaired at the time of their motorcycle accident.

“For older adults, changes in vision, physical functioning, and the ability to reason and remember, as well as some diseases and medications might affect their ability to maintain control of the motorcycle,” it adds.

Goldberg says anyone injured while riding a motorcycle should seek the advice of a personal injury lawyer.

“As that case in Hamilton shows, municipalities have a duty to maintain roadways to standards that don’t pose risks to vehicles, including motorcycles,” he says. “If your lawyer can show that they failed to meet those standards, the court may find them liable for any accidents that occur.”