Often other drivers on the road simply don’t see pedestrians or drive in a way that subjects pedestrians to harm. Injuries often include traumatic brain injury, spinal cord or serious orthopaedic injuries and amputation of limbs.
There are several “rules of the road” that are useful in pursuing pedestrian accident claims. The Highway Traffic Act states that when loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle. That essentially means that if you were hit by a motor vehicle it will be up to the driver of the vehicle to prove he or she was not negligent.
In circumstances where the accident is found to be your own fault, you would still be entitled to significant accident benefits for income loss, medical treatment and rehabilitation care (see Accident Benefits Claims).
If you have been involved in a accident with a motor vehicle, the following statutory accident benefits may be available to you:
a SUPPLEMENTARY MEDICAL BENEFITS & REHABILITATION BENEFITS
If an insured person sustains an impairment as a result of the accident, the insurer may be required to pay for all reasonable expenses incurred by or on behalf of the insured person, including medical, hospital and nursing care, chiropractic, psychological, occupational therapy and physiotherapy services, medication, prescription eye wear, dentures and dental devices, medical devices including aids, wheelchairs, prostheses and orthotics, and transportation to and from treatment sessions.
An insurer may also be required to pay for reasonable measures to reduce or eliminate the effects of any disability and to facilitate the insured person’s reintegration into his or her family, the labour market and the rest of society, including social and vocational rehabilitation, home renovations and vehicle modifications.
The maximum amount of supplementary medical benefits and rehabilitation benefits payable is $100,000.00 for each person who qualifies for these benefits, or $1,000,000.00 if the person has sustained a “catastrophic impairment”.
A person claiming any medical or rehabilitation benefits must submit a Treatment Plan to the insurance company. This should be done before any treatment is undertaken. The Treatment Plan must be prepared by a Health Professional (a doctor, psychologist, massage therapist, occupational therapist, etc).
b ATTENDANT CARE BENEFITS
An insurer may be required to pay the cost of providing for an aid or attendant for an injured person. These benefits include the services of a family member caring for an injured family member at home, the cost of an in-home care attendant, or for services provided by a long-term care facility including a nursing home, home for the aged or chronic care hospital.
The maximum payable each month, with respect to each injured person, is $3,000.00. However, if a person has sustained a “catastrophic impairment”, a monthly maximum of $6,000.00 may be payable.
An insurer may require a certificate from a member of the health profession stating that the expense is reasonable and necessary for the person’s care.
c FUNERAL AND DEATH BENEFITS
When an insured person dies as a result of a motor vehicle accident, the insurer may be required to pay funeral expenses incurred to a maximum of $6,000.00.
The insurer may also pay death benefits. If the deceased was married, a sum of $25,000.00 would be payable to his or her spouse. If the deceased was not married but was survived by a dependant or dependants, the $25,000.00 payment that would be payable to a spouse would be divided equally among the dependants.
In any case, the insurer would also be obligated to pay an additional $10,000.00 to every surviving dependant of the deceased and possibly to each former spouse of the deceased.
If the deceased was himself or herself a dependant at the time of the accident, the sum of $10,000.00 would be payable to the person upon whom the deceased was dependent, or if that person is dead, to that person’s surviving spouse or surviving dependant or dependants.
In order to qualify for death benefits, the deceased must have died within 180 days from the day of the accident, or if the deceased was continuously disabled as a result of the accident, within 156 weeks of the day of the accident.
No one is entitled to claim death benefits unless he or she survives the deceased by a minimum of 30 days.
d WEEKLY INCOME REPLACEMENT BENEFITS
An insured person who sustains an impairment as a result of an accident may be entitled to a weekly income replacement benefit if, at the time of the accident:
he or she was employed;
- he or she was not employed but was employed for at least 26 weeks during the 52 weeks before the accident and was at least 16 years old;
- he or she was at least 16 years old and receiving Unemployment Insurance benefits; or
- he or she was entitled to start work within one year under a contract of employment; (for accidents before April 15, 2004 only)
- and as a result of and within 2 years of the accident, he or she suffers a substantial inability to perform the essential tasks of the employment.
A weekly income replacement benefit may be payable during the period the insured person suffers a substantial inability to perform the essential tasks of the employment. No benefit is payable during the first week of the disability.
The amount of the weekly income replacement benefit paid for the first 104 weeks of disability is 80% of the injured person’s net weekly income from employment. Your “net weekly income” is determined in accordance with a prescribed formula.
After the first 104 weeks of disability, the weekly income replacement benefit is only payable if the insured person suffers a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience. The amount of the benefit is 80% of the injured person’s net weekly income from employment or $185.00, whichever is greater. In any case, the amount payable to an injured person for weekly income replacement benefits shall not exceed $400.00 per week unless optional benefits have been purchased.
The insurer is entitled to deduct from the weekly income replacement benefits net payments for loss of income available to or received by the insured person.
If a person who is entitled to weekly income replacement benefits attained age 65 prior to the accident, an amount to be determined in accordance with the Schedule may be payable only up to 208 weeks after the onset of the disability.
e NON-EARNER BENEFITS
If, at the time of the accident, the injured person was not working but was enrolled in school or had completed his or her education during the year prior to the accident and was not employed in a job that reflected his or her education, he or she may be entitled to a non-earner benefit. An injured person is only entitled to this benefit if he or she suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. The non-earner benefit is not payable for the first 26 weeks of the disability, and is not payable for any period before the injured person is 16 years old.
The amount of the non-earner benefit is $185.00 per week. However, an injured person who was enrolled in school or who had completed his or her education in the year prior to the accident, and whose disability has lasted for more than 104 weeks, is entitled to $320.00 per week for the non-earner benefit, after the first 104 week period
f CARE GIVER BENEFITS
An insured person who sustains an impairment as a result of an accident may be entitled to a care giver benefit if the insured person was residing with and was the primary care giver for a person in need of care, providing the insured person did not receive any remuneration for engaging in care giving activities.
The care giver benefit is meant to pay for reasonable and necessary expenses incurred in caring for a person in need of care.
The amount of the care giver benefit shall not exceed $250.00 per week for the first person in need of care plus $50.00 per week for each additional person.
NOTE: The income replacement, non-earner and care giver benefits are payable so long as the insured person suffers from the disability in respect of which the benefits are paid. Only one of these three benefits is payable for any given period of time.
What other losses are covered through the accident benefits insurer?
The insurer may be required to pay a reasonable allowance to cover expenses incurred by certain persons who visit the injured person during his or her treatment or recovery. The people who qualify for this benefit include spouses, children, grandchildren, parents, grandparents, siblings, a person living with the injured person at the time of the accident, a person who has demonstrated a settled intention to treat the injured person as a child of that person’s family, and a person whom the injured person has demonstrated a settled intention to treat as a child of the injured person’s family.
The insurer will also pay for lost educational expenses if the injured person is unable to continue in a program that they were enrolled in at the time of the accident. The amount payable, to a maximum of $15,000.00, is meant to compensate for expenses incurred before the accident for tuition, books, equipment and room and board.
The insurer will also pay for additional expenses for housekeeping and home maintenance services incurred as a result of the accident, up to a maximum of $100.00 per week. This may be claimed for up to 104 weeks or more if the injuries are “catastrophic”.
The insurer may be obligated to replace or repair clothing damaged in the accident, prescription eye wear, dentures, hearing aids, prostheses and other medical or dental devices lost or damaged in the accident.