Common issues arising from pedestrian/automobile accidents

By Paul Russell, LegalMatters Staff • Pedestrians injured in a motor vehicle accident are entitled to damages even if an automobile policy does not cover them or if the driver flees, says Ontario disability and personal injury lawyer Joshua Goldberg.

“People who are walking are particularly vulnerable when it comes to auto accidents, resulting in consequences that can include broken bones or even death,” says Goldberg, principal of Joshua Goldberg Law.

“Most of us are pedestrians at some point, whether it is to walk the dog or to visit retail stores,” he says. “If you are injured by a car while on a sidewalk or crossing a roadway, you have legal remedies that vary depending on the nature of the accident.”

If a licensed driver is injured as a pedestrian, they can file a claim with their own insurance company by submitting an Application for Accident Benefits, Goldberg tells LegalMattersCanada.ca.

“They should do that within a few days of the accident,” he says, explaining that under Ontario’s no-fault insurance system, it does not matter if the pedestrian was partly or fully responsible for the accident.

“If the injured person does not have an auto insurance policy, they can seek compensation through the insurance policy of the driver who hit them, says Goldberg.

If neither the driver nor the pedestrian is insured, he says the pedestrian can make a claim to the Motor Vehicle Accident Claims Fund (MVACF).

‘Last resort for compensation’

“The fund is the last resort for compensation if you were injured in an accident and no other insurance is available,” says Goldberg. “It will pay accident benefits if you suffered an injury, death and funeral benefits on behalf of someone who died or compensation for personal injury or property damages.”

To apply for accident benefits, information from the MVACF states people need to:

• sign and complete a Statutory Accident Benefits Application (OCF-1);
• complete an Application for Payment (Form 3) and Notice of Collection of Personal Information;
• submit a copy of the police report; and
• include a letter from the insurance company indicating their policy was not in force at the time of the accident, if applicable.

“The MVACF can pay Ontario’s minimum liability limits of up to $200,000, including prejudgment interest, per accident, as well as legal costs,” says Goldberg.

He adds that pedestrians hit by a vehicle that flees the scene before the identity of the driver can be established can also make a claim to the fund.

“Another option when dealing with uninsured drivers is that you can sue for general and special damages, if the driver was at fault in the accident,” Goldberg says.

He says an injured pedestrian must prove two things to obtain a favourable judgment in a lawsuit.

Must prove at least two things

He says an injured pedestrian, generally speaking, must prove at least two things to obtain a favourable judgment in a lawsuit.

“You have to show your injuries were caused by the wrongful behaviour of the driver,” says Goldberg. “Even if the pedestrian was partly at fault, they may be able obtain an award that takes into consideration their degree of fault for the accident.”

The second factor that must be shown is that the injuries are serious enough to meet the threshold set out in the Ontario Insurance Act for Statutory Accident Benefits, he says.

“That Act states the injured person must have either died or sustained permanent serious disfigurement or permanent serious impairment of an important physical, mental, or psychological function,” says Goldberg.

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“If you are injured by a motor vehicle and you meet that threshold, you have two years from the date of the accident to launch a lawsuit,” he notes. “The assistance of a personal injury lawyer is critical at this stage, to assess whether you meet the criteria and to launch legal action.”

The Highway Traffic Act imposes a reverse onus on drivers who strike pedestrians on a public roadway. The duty of care is outlined in section 193(1), which states: “When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.”

“In Ontario, a driver is presumed negligent unless they can prove otherwise,” says Goldberg. “If a driver hits a pedestrian, the driver must show they acted reasonably and properly in the circumstances. If they can’t, they will be found negligent.”

Pedestrian accidents are common

More than 300 pedestrian fatalities occur in Canada every year, according to Statistics Canada.

In Ontario, according to the Preliminary 2022 Ontario Road Safety Annual Report from the Ministry of Transportation, there were 3,066 accidents involving pedestrians in 2022. Of those 1,102 people suffered minimal injuries, 1,498 minor injuries, 374 major injuries and 92 people died.

That death rate represented 15.5 per cent of total highway fatalities that year.

The StatsCan report notes that hit-and-runs account for approximately eight per cent of pedestrian fatalities.

“While nearly half of these drivers were in passenger vehicles (47 per cent), about 13 per cent were in commercial or heavy vehicles such as dump trucks or snowplows,” the report states. “In some cases, the driver of the commercial or heavy vehicle was not aware they had struck someone and continued to drive.”

The report also notes that the rate of pedestrian deaths was 1.7 times higher among males and that those 70 and older were the most at risk of a fatal pedestrian incident.

“A higher fatality rate among seniors may be linked to a decline in muscle strength, balance, reaction time, vision and hearing, states StatsCan. “These vulnerabilities make it more difficult to see oncoming traffic, get around on foot quickly and judge distances correctly. As well, seniors are at higher risk of severe injuries or death when a collision occurs than younger pedestrians.”