Tara Miller – May 2016
Generally, anyone injured in a motor vehicle accident is entitled to no-fault accident benefits through Section B of their own automobile insurance policy. Section B benefits are no-fault meaning they are available regardless of whether you were at fault for causing the accident in most circumstances. Many people mistakenly believe they only have access to these benefits if they did not cause the accident and often lose out on valuable resources for treatment and financial assistance in the immediate aftermath of an accident.
Section B no-fault benefits include:
- reimbursement for reasonable and necessary medical expenses incurred within 4 years from the date of the accident (up to a maximum of $50,000);
- a monthly disability payment for loss of income (up to a maximum of $250/week);
- weekly compensation for homemakers; and
- funeral, grief counselling and death benefits if a family member is fatally injured in a collision.
What happens if you are not in a vehicle when the accident happens – if you are a pedestrian or bicyclist hit (or almost hit) by a vehicle? It is important to know that you, or family members who are pedestrians or cyclists, have access to the same no-fault accident benefits through the insurance of the vehicle that was involved in the accident.
Pedestrians and/or cyclists are often injured when they take evasive action to avoid being struck by a vehicle hurtling towards them. While there may be no actual direct contact between the vehicle and the pedestrian/cyclist, they are still likely entitled to Section B benefits under the vehicle’s auto insurance.
The relevant definition of an “insured person” under Section B is “…any person, not the occupant of an automobile…, who is struck, in Canada, by the described automobile… “. Canadian courts have taken a liberal interpretation of the word “struck”, extending coverage under this definition to those who were not in a literal sense struck or hit by an automobile but instead faced a situation of danger where individuals were forced to take evasive action to avoid perilous conditions created by an oncoming vehicle. In those cases, Canadian courts have had:
“… no difficulty extending the ordinary meaning the words “hit” or “strike” to cover the situations of “notional striking”… That said, the words still plainly imply a significant degree or proximity between the automobile and the pedestrian, and the real apprehension by the pedestrian of imminent peril due to the actions of the motorist, the “immediate sensory invasion”. Tucci v. Pugliese 2009 CarswellOnt 4119 (Ont. Sup. Ct)
Direct physical contact between an automobile or pedestrian/cyclist is not required to meet the definition of “insured person” as one who has been “struck”. If you or a loved one has sustained injuries as a result of taking evasive action to avoid a much more significant direct collision, then you are still entitled to access Section B no-fault benefits.
For any questions you may have about your or a loved one’s entitlement to Section B benefits, or about a personal injury claim in general arising from a pedestrian or bicyclist accident, please contact one of MDW Law’s personal injury lawyers for a free consult.