Drivers still liable even if they hit sidewalk cyclists
A reader sent this question to me:
I started commuting by bike this year around Vaughan and the North Toronto Area. Given the lack of bike lanes on my commute and the speed of traffic on the roads I use the sidewalks for some of my commute. I have noticed that drivers pulling out of driveways or turning at intersections rarely stop at the sidewalks or intersections to check for pedestrians as required by the Highway Traffic Act (HTA). I realise that I also violate the HTA by riding on the sidewalk, but I would like to know if I am ever hit because a driver did not check for pedestrian traffic when pulling out of a driveway, do I have any rights as a cyclist or am I fully to blame for riding on the side walk?
I'm no lawyer so I passed the question on to Patrick Brown of Mcleish Orlando, who has represented a lot of cyclists involved in collisions. Turns out that even if you're riding on the sidewalk a driver will likely still be largely liable for damages in a civil suit.
Here's what Patrick said:
I have had cases involving both situations: 1) where the cyclist is on the sidewalk and is hit by a car on a driveway leading to the road, and 2) where the cyclist is on the sidewalk and rides on to the roadway at an intersection. In each case, the lion share of liability has been found against the driver of the car regardless of the fact that the person was riding on the sidewalk.
In a civil case, whenever a cyclist or pedestrian is struck down by a car, there is a reverse onus applied to the driver.
Section 193 of Highway Traffic Act imposes a reverse onus on the driver who strikes a pedestrian/cyclist. The Defendant driver is presumed to have been negligent unless he/she can prove otherwise. The courts have repeatedly indicated that “the defendant cannot discharge the onus on him/her by showing that the plaintiff’s loss or damage was caused in part by the negligence of the plaintiff. That can only be done by the defendant showing that there was no negligence or misconduct on his part.” (Shapiro v. Wikinson,  O.J. No. 806 (Ont. C.A.), aff’d by  S.C.R. 443 (S.C.C.) . The courts have therefore found that the duty owed by the driver is to “take proper precautions to guard against risks that might reasonably be anticipated to arise.”
In many cases, the driver is responsible to look for pedestrians and other users of the sidewalk. The fact that a person is on a bike does not remove this responsibility from the driver and does not give the driver to hit the person. therefore, in the majority of instances, the driver of the car will be held to be at fault unless they can show that they took reasonable steps to look and see what was there.
In these cases, the driver’s insurance defence lawyer will assert contributory negligence against the cyclist. Depending on the nature of the collision, the cyclist may have a portion of fault attributed to him or her. For example, if the cyclist was at a standstill or moving slowly when struck, the fact they were on the sidewalk with a bike would be immaterial, since they were there to be seen. In those circumstances, the driver would likely be found 100 percent to blame. If, however, the cyclist was riding at a quick pace and they were difficult to see due to obstructions, a portion of fault may be found against them. Once fault is determined, the driver of the car is responsible to pay damages based on their percentage of fault.
Therefore, even though you are riding on a sidewalk and a car hits you, you can still successfully sue for damages. In the majority of circumstances, the larger share [and in many cases 100% share] will fall on the driver.
Some people will want me to take a firm stance against sidewalk cycling. I think it's more complicated than that. It's not surprising that people choose to ride on the sidewalk in the suburbs. The roads are simply scary, even for experienced cyclists like myself (and more so the older I get). I usually take the road but sometimes will only carefully take the sidewalk if the road is too scary (hello Highway 7).
I've given some tips before on how to safely and respectfully ride on the sidewalk. Since we teach our children to ride on the sidewalk safely and respectfully, perhaps we should also teach adults who are not able to navigate fast suburban traffic how to use the sidewalks as well (legality aside).