Despite the health and environmental benefits of riding E-Bikes, there are some legal risks that come with these E-Bikes both for E-bike riders themselves and other users of the road who are injured by E-Bikes.

NO INSURANCE REQUIRED:

E-bikes are not considered motor vehicles under the Highway Traffic Act, which means that motor vehicle insurance is not required.

Because motor vehicle insurance is not required for E-Bikes, those injured by E-Bikes may be without recourse to insurance funded treatment.

For example, a pedestrian struck by an E-Bike would not be able to access insurance coverage for treatment they may require or for the income replacement they may require. Had the incident involved a vehicle for which insurance was mandated (i.e. a motorcycle or car), the injured pedestrian (or E-Bike Rider) would be able to claim accident benefits (no-fault insurance) through the appropriate insurer.

Similarly, should an injured pedestrian need to sue the E-Bike operator for negligence as a result of damages suffered, the E-Bike operator would likely be uninsured and without insurance coverage behind them to access for the purposes of the lawsuit. It could mean the injured party would be dealing with an impecunious party.  On the contrary, had the incident involved a vehicle for which insurance was mandated, insurance would be available to respond to the lawsuit. This would ensure that the injured claimant have a “pocket of money to access” without concerns about the defending party being impecunious.

E-BIKES CAN BE HAZARDOUS AND LEGALLY COMPLICATED:

Although not considered a “motor vehicle”, make no mistake that E-Bikes can cause serious injury to unsuspecting pedestrians, cyclists or other users of the road—even to riders of the E-Bikes themselves. They tend to be quiet and harder to hear coming. Yet, they can travel up to 32 km/h and with a typical E-Bike weighing at well over 200 pounds, this can be a recipe for disaster.

E-Bike riders themselves who lose control or other users of the road can become seriously injured in E-Bike accidents. Unfortunately, injuries caused through the use of E-Bikes pose legal challenges both for those injured by E-Bikes and those on E-Bikes who cause injury to others.

FOR THOSE INJURED THROUGH USE OF AN E-BIKE:

Where the accident only involves an E-Bike (without involvement of  another car, truck or motorcycle), injured parties will have limited recourse through insurance.

The involvement of another motor vehicle in the same accident (that requires mandatory insurance to be in place) may simplify the legal complexities in accessing insurance coverage for your injuries/losses. This would extend to accident benefits coverage (to obtain no-fault benefits) and to third party coverage (to claim against the at fault party).

Some E-Bikes may have optional insurance coverage in place which can be accessed. This means that if you were to be injured by an E-Bike, the operator of the E-Bike in some situations may have an insurance policy (although optional) that can provide some coverage in the event you were to claim against them.

If you are seriously injured through the use of an E-Bike, it is important that you speak with a personal injury lawyer to discuss your legal options.

FOR E-BIKE RIDERS WHO CAUSE HARM TO OTHERS:

As an E-Bike rider who has caused injury to another user of the road (i.e. pedestrian, cyclist or another driver), beware of personal liability exposure that you may face!

This is not something that owners and operators of insured vehicles need to worry about because they have insurance that would respond to any such claim.

The prudent thing to do would be to obtain insurance to cover yourself in the event of such a lawsuit.

CONCLUSION:

 The cost savings of an E-Bike and convenience of them must be weighed against the risks of being injured through their use.

The risks associated with negligence operation of an E-Bike causing harm must also be taken into account, especially where no optional insurance is taken out.

The post THE JOYS AND PERILS OF E-BIKES appeared first on Hennick Law.

CATEGORIES OF FAMILY LAW DAMAGES

Section 61 of the Family Law Act provides for compensation to spouses, children, grandchildren, parents, grandparents, brothers and sisters of family members resulting from injuries or death to a family member caused by the fault or neglect of another.

These damages are known as a “Family Law Claim” which is often seen in situations where family members of injured or deceased victims (through the negligence of another) pursue claims for damages along with the claims brought by their injured or deceased family member (or their Estate).

(SIDE NOTE: It is interesting to note that nephews, cousins, aunts and uncles are not included on this list and it only seems to address blood relatives. This is quite short sighted as there may be a host of other family (and non-family) relationships worthy of compensation. However, this is a discussion for another day.)

Some of the compensation recoverable under section 61 includes funeral expenses, travel expenses in visiting the injured or deceased family members during their treatment or recovery, and reasonable allowances for income loss for housekeeping, nursing or other services provided by family members (or the value of those services).

However, one of the most notable damages provided for is the “loss of guidance, care and companionship”.

Of course, there is no way to ever truly “quantify” the value of a family member’s loss. However, the courts in Ontario have provided some clarity on quantifying such claims.

Every case will need to be decided on a case by case basis as there is not a one size fits all approach. The courts will look at the nature and circumstances of the family relationships that have been lost or altered as a result of negligence and try to put a value on the lost care guidance and/or companionship.

The courts must assess this in an “objective and unemotional way”, which was the approach endorsed by the Court of Appeal for Ontario in the 2001 decision of To v. Toronto Board of Education.

What exactly the loss of guidance care and companionship means has been discussed by the courts (and also summed up at paragraph 36 of the To v. Toronto Board of Education.

Decision).

It has been held that companionship (in the context of a child who was killed) consists of the deprivation of the society, comfort and protection which might reasonably be expected had the child lived.  It has also been described as the “the loss of the rewards of association which flow from the family relationship”.

With regard to the loss of care, this was referred to as including “feeding, clothing, cleaning, transporting, helping and protecting another person”.

The loss of guidance has been described as including such things as education, training, discipline and moral teaching.

Some cases may involve all or some of these.

CAPS ON FAMILY LAW DAMAGES

In To v. Toronto Board of Education, the deceased, a 14-year-old grade 9 student, was doing pull- ups on the steel crossbar of a handball net in his high school gymnasium when the net toppled over, crushing his head between the steel frame of the net and the gymnasium floor and killing him.

In assessing Family Law Damages, the court held:

The general or accepted range of damages in sibling claims for the loss of guidance, care and companionship in roughly comparable cases is very broad but the assessments are consistently lower than $50,000…In my opinion, a $50,000 guidance, care and companionship assessment exceeds the accepted range of damages to a degree that requires this court’s intervention. To put it another way, the assessment is inordinately high.

 The Court of Appeal reduced the lower court’s sibling Family Law Damages Award to $25,000.00. (or about $37,000.00 adjusted for inflation in 2020).

When assessing the parents of a deceased’s Family Law Damages Claim, the court stated:

The assessments of $100,000 for each of [the parents of the deceased] might be viewed as being at the high end of an accepted range of guidance, care and companionship damages. The question that must be considered is whether those assessments are outside the accepted range of damages. In my view, the $100,000 assessments for [each of the parents] are not outside the range.

The Court of Appeal went on to conclude:

In my opinion, there was evidence in this case that would support a conclusion that damages for guidance, care and companionship in respect of the mother, father and [sibling] were justifiably assessed at the high end of what one might describe as an accepted range of damages.

The takeaway from this Ontario Court of Appeal decision, is that Sibling Family Law Claimants would be likely awarded up to a maximum of around $25,000.00 (based on 2001 dollars or $37,000.00 adjusted for inflation). For parents who are Family Law Claimants, the award of damages at the high end would likely be around $100,000.00 (in 2001 dollars or $148,000.00 adjusted for inflation in 2020).

As of 2020, Motor Vehicle Accidents in Ontario impose a deductible of $19,778.27 on any Family Law Damages awards under $65,926.46. This is an unfortunate slap in the face to family members and the subject of a whole other article on the many victim challenges associated with motor vehicle accident litigation.

The post FAMILY LAW DAMAGES IN THE FACE OF TRAGEDY: THE ONTARIO COURT OF APPEAL’S APPROACH appeared first on Hennick Law.

While an experience injury lawyer can help advise you on the specific steps needed to help advance yourclaim, here at Hennick Law, we’ve compiled a short list of some of the most common mistakes we see after fall injuries that people aren’t often aware about.

MISTAKE #1- NOT TAKING PHOTOGRAPHS:

This is one of the most common mistakes made after a fall injury. Timely photographs depicting the ground conditions are key. Don’t rely on the establishment to have closed circuit television to capture the fall or ground conditions. The onus is on the claimant to prove its case, not the establishment. Even if there is closed circuit television, it may not capture the needed details from a close enough distance. Additionally, closed circuit television footage may get overwritten by new footage every so often or even lost. It’s always best to have timely photos of your own to capture the hazard. Picture these being blown up on a big screen in the courtroom to persuade the court of the hazards. Without these, proof will be more difficult.

MISTAKE #2- NOT SECURING EYE WITNESS INFORMATION AND DETAILS PROMPTLY:

Often times, the last thing on your mind after a fall is getting the contact details of those who witnessed it. Unfortunately, this can come back to haunt you later when you need people to back your story. What will you do when the party you’re claiming against alleges you were running, not keeping a proper lookout and that the ground was not wet, was in good condition or that it was well salted etc?  Having an independent witness to back up your story at the time can be very helpful. If you’re fortunate enough to have eye witness information, it is very important to get them to put their account into a signed statement early on for your reference. After all, over time witness memories fade, witnesses move away or in some cases die. Having their accounts preserved in writing can be very helpful in addition to jogging their memories years later if they must testify at trial. If they’re not available to testify, their statement can still be relied upon.

MISTAKE #3- NOT PROVIDING PROMPT NOTICE OF THE FALL

It’s always helpful to provide timely notice of the fall to the establishment where you had your fall.  Failure to report the incident may create difficulties later when weeks or months down the road you decide to pursue action. By that point in time, the ice may have melted, the ground repairs may have already been done, the employees may have no recollection of what happened and surveillance footage in all likelihood may have been overwritten. It’s helpful to have timely investigation notes documenting the incident such as incident reports, investigation notes or security log notes noting the deficiencies in internal memos which would be producible during the course of litigation. Reference to the incident occurring in the offending party’s internal records is more persuasive, especially when the notes and reports are generated soon after an incident. If they didn’t know about the incident because it wasn’t reported, then there would not likely be timely notes of your incident available. Lastly, in cases against municipalities involving sidewalks, failing to report the incident in writing within 10 days can prevent you from pursuing a claim at all. Don’t be a victim of this mistake.

MISTAKE # 4- NOT SEEKING TIMELY MEDICAL ATTENTION

 Even if you were fortunate enough to dodge the above mistakes, don’t make the mistake of avoiding treatment for too long if you were hurt. After all, establishing the fault of the responsible party won’t matter if you cannot establish you have an injury because you didn’t seek treatment. The longer you wait, the larger the treatment gap becomes and the greater the difficulty you will have connecting the medical visit to the fall. What if after the fall you had a car accident before visiting the doctor or another fall in between? This may pose challenges for you in proving your injuries were “caused” by the fall and not the other intervening events. Timely and consistent treatment right after the fall is the best way to get the help you need and preserve the medical proof necessary to help advance your case. After all, the law isn’t about truth, it’s about proof.

MISTAKE # 5- SIGNING A DOCUMENT

 Never sign anything after a fall injury until speaking with an experienced injury lawyer. Whether it be a statement or a full and final release, you can be permanently limiting your legal rights. By signing a statement, you may be bound by the contents of that statement, even if you weren’t the one who wrote it or in the proper frame of mind to be providing one. Insurance companies may ask you to meet and to sit down and provide a detailed statement from you without any legal representation by your side. They won’t even encourage you to seek a lawyer in most cases. What you say or omit in your statement will be used against you later.  Lastly, signing a full and final release will forever release the responsible party from any responsibility and close your case. It will be nearly impossible to reopen your case once you sign this (of course the insurance company would love you to). In a nutshell, don’t sign anything without seeking legal advice

BONUS MISTAKE # 6- NOT CALLING HENNICK LAW

 Just kidding! You don’t have to call us after a fall injury but we’re always here to help you after a fall injury if you need us. It is our pleasure to help you if you’d like to reach out. Most importantly though, be safe and have a happy holiday season with friends and family. Since you’ve made it this far into the article, we thank you for your time and encourage you to share this information with dear family and friends to help others avoid these common costly legal mistakes after a fall injury.

The post THE TOP 5 MISTAKES AFTER A FALL INJURY THAT CAN COST YOU MONEY: appeared first on Hennick Law.