Driving in general is an activity that carries notable risks. This is part of the reason why automobile insurance coverage is mandatory. Accidents occur frequently enough that, from a public policy standpoint, it is vital to ensure that victims of motor vehicle accidents can seek compensation for expenses that arise from being injured, including medical bills and income loss from time off work.
As thrilling and fun as it is, driving a motorcycle carries unique risks and a greater probability of serious injury in the event of an accident. Unfortunately, even where motorcyclists drive very prudently, drivers of other vehicles sometimes forget how vulnerable motorcycle drivers are, and the severity of injury that can result from an accident. In the month of May, in Alberta, five motorcyclists were tragically killed in motorcycle accidents within a two week span.
If you have survived a motorcycle accident, but have been left with potentially long-term injuries, it is important to know your rights.
When You Should Speak to a Lawyer
It is important for an injured motorcyclist to discuss options with a lawyer as soon as possible following the accident. Even if you do not think your injuries are severe initially, it is important to protect yourself in the event that you suffer from long-term pain or problems, whether physical, cognitive, or psychological, down the road. Sometimes the initial shock of an accident masks serious injuries, and sometimes “minor pains” or seemingly small injuries never heal. Documenting all relevant information about your medical condition as soon as possible is critical, as is taking the steps necessary to protect your rights if you want to start a claim.
Even if you, as the motorcyclist, are liable for the accident, you will still be able to seek compensation for some of your expenses and losses from your own insurance policy. Every driver’s policy provides for Section B benefits or “no fault” benefits. These benefits are provided by your own insurer, regardless of who is at fault. Understanding how to handle a Section B benefits claim can be confusing, and it is wise to speak to a lawyer who can help you maximize the amount of compensation you receive, and help you take the steps required to collect this compensation.
If the driver of the other vehicle was at fault, your options for recovery may also include commencing a lawsuit against the driver to collect additional damages for pain and suffering, and to recoup any losses not covered by Section B benefits. The driver’s policy of insurance will kick in to provide the driver a defence, and to cover compensation that may be awarded to you at trial, or by way of settlement. It may also be that you are partially at fault for the accident, or “contributorily negligent” in causing your own injuries. Even if this is the case, provided that the other driver is to some extent liable, further compensation may be available to you by way of a lawsuit in negligence (also called a “tort claim”).
Commencing Legal Action
Before commencing a lawsuit, you will typically deal with your own insurer for the purposes of claiming Section B benefits, regardless of who is at fault. Again, Section B or “no fault” benefits are collected from your own insurer. In some cases, this will be a smooth process, and the insurer will agree to pay all reasonable medical expenses and income loss benefits, up to the limits of the policy (income loss benefits will generally be less than your full income). The insurer will require evidence of your injuries and losses. A good Calgary personal injury lawyer will walk you through this process, ensure that your application is complete and guide you through the steps necessary to prove your losses, which will include collecting medical records. If your claim is denied, your lawyer can assist you in appealing the insurer’s decision, and if not, he or she can help you commence a lawsuit against the insurer for unfairly denied benefits, if appropriate.
Where the driver of the other vehicle is at least partially liable for the accident, it may be appropriate to commence a tort claim against the driver by filing a Statement of Claim in the Alberta Court of Queen’s Bench. The Statement of Claim outlines your case (i.e., explaining why the other driver should be found liable for causing the accident) and the damages that you are seeking (i.e., losses arising from the accident). Following this, the driver’s insurer will retain a lawyer to provide a defence to the claim.
In a tort case, the parties will gather and exchange documents that are relevant to the case, including collision reports, photographs, and medical records. As a plaintiff, you may be subjected to a process called “examination for discovery”, where the insurer’s lawyer will be entitled to question you about how the accident occurred, and about your injuries and losses.
Following discoveries, parties sometimes arrange a mediation in an attempt to settle the case without the need for an expensive trial. Cases often settle at mediation, or sometime after mediation and before trial. Trials are expensive, so in most cases, the parties will try to reach a mutually agreeable settlement without trial.
Whether or not an injured party can recoup the full extent of their losses will depend on the relative degree of fault of each party. Pursuant to the Limitations Act, a lawsuit must be commenced within two years following the accident.
Examples of Alberta Lawsuits Involving Motorcycle Accidents
It is not uncommon for injured motorcyclists to commence a lawsuit against the driver of a vehicle that has struck them. Alberta courts have found drivers liable for motorcyclists injuries, and treat motorcycle cases no differently than ordinary motor vehicle accident cases. It is worth noting that where a motorcyclist is deceased as the result of an accident, his or her family member can commence a claim as a representative of the estate, and as individuals, for bereavement damages.
In Baker v Poucette, 2016 ABQB 557 (CanLII), a motorcyclist was tragically killed in an accident with a truck. The truck was making a left turn, crossing over oncoming traffic, into a lot. The truck failed to use its left turn signal and turned very slowly. The motorcyclist, oncoming from the opposite direction, careened into the back end of the trailer. The court found that the truck had failed to use its signal and completed its turn inordinately slowly, but also that the motorcycle was driving at an excessive speed and was unable to slow down in time. The deceased’s family sued for bereavement damages, housekeeping expenses (as the deceased contributed to household maintenance), and income dependency losses. Liability was apportioned at 75/25, with the truck driver being 75 percent liable.
In Fandrick v. Reitberger, 2009 ABQB 703 (CanLII), liability was admitted by the defendant driver for the plaintiff motorcyclist’s injuries and the issue was the quantum of damages. The plaintiff motorcyclist suffered strains and pain in various areas of his body, as well as ongoing pain in his knee joint. Although the plaintiff’s injuries were thankfully minor relative to the injuries suffered in some motorcycle accidents, the plaintiff was still awarded $75,000 for general pain and suffering, and over $6,000 to cover various future medical care costs.
Your Accident Lawyer in Calgary, Edmonton, and Red Deer: Braithwaite Boyle Accident Injury Law
If you have been involved in a collision as a motorcyclist, it is important to see a lawyer to protect your rights and determine whether you have a case against an at-fault driver. We are experienced in motorcycle accident claims. Contact us at 1-800-661-4902 for your free initial consultation with an Edmonton, Red Deer, or Calgary motorcycle accident lawyer today.