7 Mistakes People Make After an Accident

I was a cyclist involved in a car accident. What are my rights?

In short, the same as those of a driver or passenger. Liability may be handled differently, but the cyclist maintains a right to claim against the at-fault driver and seek benefits from the applicable insurer. Your car insurance is meant to provide accident benefits if you're involved in a car accident. It does not matter whether you were actually driving a car. As long as you have car insurance, your accident benefits should kick in. If you don't have car insurance, the at-fault driver's insurance will provide accident benefits. Either way, you should be covered by a policy. If neither of you has insurance, there's still the motor vehicle accident fund which acts as a safety net in cases where insurance is not available.

Typically, there's an assumption that the cyclist was not at fault. This does not mean you can pedal around with no regard to surrounding traffic. You still have to be diligent and you still owe yourself an obligation to proceed with reason. Any contribution found on your behalf will reduce the value of your claim. You can be deemed contributorily negligent if you don't wear the proper protective gear, or if you don't abide by the rules of the road.

Seasonal changes in traffic will often give rise to increases in car accidents involving cyclist. A good portion of the driving population does not properly adapt to these changes. This causes drivers to make assumptions they shouldn't make: disregarding their blind spot, failing to keep track of cyclist in the bike lane, opening their doors without thinking of oncoming cyclist. Unfortunately, the injuries are often devastating. Even with protective gear, the force of direct impact may leave the cyclist with serious, life-changing and permanent injuries.

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What if I or the other driver don't have insurance?

‍Answer: Ontario's auto insurers provide accident benefits and liability insurance. The accident benefits claim and the tort claim both work together toward covering your losses stemming from the accident. So, what happens when one of the parties involved doesn't have insurance? I've listed the most common scenarios:

A rear-ends B. A doesn't have insurance. B does have insurance:

The standard Ontario insurance policy includes coverage in-case the at-fault party is uninsured or underinsured. B's insurer would be on the hook for the accident benefits and the damages caused by the at-fault party as well (tort claim).

A strikes B (a cyclist). A has insurance. B doesn't have insurance:

In this case, it's up to A's insurer to provide both accident benefits in addition to compensation for the damages caused by A.

A is a pedestrian struck by driver B. A is injured. Neither A nor B have insurance:

In this circumstance, plaintiffs turn to the Motor Vehicle Accident Claims Fund. The fund may provide:

• Accident benefits
• Death and funeral benefits
• Compensation for personal injury or property damage (except for vehicles)

Although the fund does not work exactly like an insurer, it does provide a safety net for injured parties with no accessible insurance policy.

Resources:

• https://www.ontario.ca/laws/statute/90i08
• https://www.ontario.ca/laws/regulation/100034

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What does "no fee unless you win" actually mean and how do most personal injury Lawyers get paid?

Answer: Taken literally and with knowledge of what goes into every account "no win, no fee" is a legitimate statement. That means: Yes, the Lawyer will not get a fee if you don't receive compensation. However, in addition to fees, there are also costs and disbursements.

Costs represent the defendant's legal costs that are due if you get an adverse judgment. These fall on your shoulders and not your Lawyers. Costs insurance can be available in some cases and should be explored in your initial meetings (the earlier you get it, the cheaper it is).

Disbursements are the funds paid upfront by your Lawyer to carry your file. They include things like photocopying, mail/postage, travel costs, filing costs and medical-legal assessments. A Lawyer can run up disbursements in the thousands and if successful, the defendant will pay the value of your claim plus these disbursements. However, if you're unsuccessful, these disbursements are typically due and owed by you. Meaning, if you don't "win" you owe the Lawyer what was spent to carry your file. Unpaid disbursements may also be covered through your costs’ insurance.

Most personal injury Lawyers work off contingency, meaning that they are compensated based on the result. They take a percentage of your settlement. That percentage is typically 30-35% depending on the Lawyer.

The fee isn't as simple as just taking a percentage of the overall settlement. It must be broken down in accordance with what a Lawyer is legally able to take. For instance, they cannot take more than the client receives. They cannot take "costs" which amount to about 15% of the value of your claim and are used to counterbalance your contingency fee.

Here's how it might play out:

Let's say the value of your claim is $100,000. In addition to the value of your claim, the defendant will have to cover disbursements (what was paid to run your file) and costs. A typical settlement could be broken down as follows:

• value of claim: $100,000
• disbursements: $15,000 (including HST)
• costs: $12,319.37
• DEFENDANT'S PAYMENT: $127,319.37

The Lawyer's fee is taken out of the value of the claim and not the defendant's entire payment. So if the contingency is set at 30%, the Lawyer's fee in the above example would be $30,000 + H.S.T.. The Lawyer will take the disbursements as well to cover the funds he or she spent on the file. You're left with the remainder. Here's how it works using the above example:

• defendant's payment: $127,319.37
• disbursements: (-) $15,000 (including HST)
• legal fee: (-) $30,000
• HST on legal fee: (-) $3,900
• IN YOUR POCKET: $78,416.37  

The exact calculation used could change depending on the facts of each case. As a note, claims are typically subject to pre and post-judgment interest at a variable rate. This will be added to the defendant’s payment.

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