Malika Bourboun, September 22, 2014

Get your motor runnin’. Head out on the highway. Lookin’ for adventure. And whatever comes our way.” Steppenwolf . (1969) “Born to Be Wild” on Easy Rider [Original Motion Picture Soundtrack], Hollywood, CA: Columbia Records.

In May 1969, Easy Rider exploded on to the American pop culture scene, just as the sexual revolution and 60s counterculture were at their apex. Although we live in a much different time, that notion of risk and non-conformity continues to permeate both the motorcycle industry and biker culture. Still, you don’t need to be a bad-ass à la “Sons of Anarchy” to enjoy riding one and these days you see everyone from dancers to dentists taking the plunge. I must admit I’m a bit of a novice when it comes to bikes. I don’t own one and have only ridden on the back of one a handful of [yes] exhilarating times. To shore up those knowledge gaps, I relied on other sources  to provide guidance on what these dangerous machines are all about. My goal was to understand how motorcycles work, what is required to drive one and what the liability issues are for drivers, especially regarding motor vehicle accidents.  The other matter of interest is what provincial statutes cover motorcycles and what the common law says when it comes to getting injured on one or injuring others while driving one in Ontario.

We begin our analysis by looking at the rights and responsibilities of motorcycle owners and drivers. As per the Highway Traffic Act, 1990, “motorcycles” meet the criteria for “motor vehicle” set out in section 1 of the Act, which states ‘motorcycle’ “means a self-propelled vehicle having a seat or saddle for the use of the driver and designed to travel on not more than three wheels in contact with the ground, and includes a motor scooter, but does not include a motor assisted bicycle.” Section 1 of the Compulsory Automobile Insurance Act, 1990 prohibits the operation of a motor vehicle “on a highway unless the motor vehicle is insured under a contract of automobile insurance.” As per the Ministry of Transportation, motorcycles must be registered with MTO and have a valid motorcycle licence plate attached in order to be driven on public roads in Ontario. In order to drive a motorcycle you must be at least 16 years old and have a valid motorcycle licence (Class M1, M2 or M). Novices must pass Level 1 and Level 2 testing.

If you pass a ministry-approved motorcycle safety course, you can reduce the time you must spend at Level Two by four months.

In 2013, the Motorcycle and Moped Industry Council [MMIC] and Canadian Off Highway Vehicle Distributors Council [COHVDC] published a comprehensive analysis of the Canadian motorcycle industry, which included comparing sales and licensing/registration data as far back as 2001. In 2013, the motorcycle business raked in $898 million in retail sales; a 14.5% increase from the year before. Surprisingly enough, new motorcycles represented 82.4% of those sales, while parts and accessories only made up 17.6%. Needless to say, the numbers reveal a dynamic industry and are a ringing endorsement for what seems to be a growing community nation wide.

As previously explained, there are many types of motorcycles. The Motorcycle Safety Foundation divides them into 3 large categories: street bikes, dual-purpose bikes and

off –road bikes.

Street motorcycles’make up the first broad category. These bikes are specifically designed with paved roads in mind and have the widest variety of body styles. They include: touring and cruiser motorcycles, standard and sport bikes, as well as scooters. Touring bikes are larger and have practical accessories such as windscreens that cut back on aerodynamic drag and large storage compartments. They also come with bigger gas tanks that let you go long distances before refuelling.  Their seats usually offer a relaxed, upright-sitting position that’s also conducive to riding longer distances. Then we have the legendary ‘cruiser’ preferred by veteran riders and Harley-Davidson aficionados, old and new. Popularised by shows like “Sons of Anarchy” or ‘West Coast Choppers”, these motorcycles are the kind most often associated with custom bikes and high-profile brands, as well as old-school Indian styles. As a result of their design, which situates the rider in a low position with arms outstretched to reach the handlebars, they’re known for being a bit more difficult to handle than the average motorcycle and may not be the right choice for an absolute beginner, such as myself. Standard motorcycles are pretty much your barebones, basic kind of street bike. They usually do not come with fairings or windscreens, offering the basic needs for the novice rider. They’re known for being relatively low-cost and versatile, and are usually the most highly recommended style of motorcycle for beginners because they blend comfort with practicality. Sport motorcycles [also referred to as “crotch rockets”] are capable of achieving high speeds in very little time and distance. They also rank high in ease of handling and braking, but aren’t known for maximum comfort or optimum fuel efficiency. If you’re an adrenaline junkie looking to relive The Fast and the Furious franchise: this is the bike for you. If personal safety is a concern, you may wanna take a pass on this one. Finally we have scooters and mopeds. These bikes have smaller engines and aren’t capable of achieving the high speeds that most other bikes can. Not recommended for highway use, a scooter is your best choice for achieving maximum fuel efficiency and for getting around from one end of town to another conveniently.

The second broad category belongs to ‘dual-purpose bikes’. These bikes are made specifically for the rider who wants the best of both worlds: to be able to take his or her bike off road, but to also have some of the necessary safety features associated with street motorcycles. Dual-purpose bikes can look like off-roaders, but they come with horns, headlights, turn signals and side-view mirrors that make them road-legal. They also have fairings, those fibreglass shells on bikes, for aerodynamics and protection for the rider against the engine block and other moving parts. Apparently, this is the ideal bike for those who want to mix street riding and off-roading.

The third broad category is ‘off-road motorcycles’. These types of motorcycles were made for those seeking a more adventurous experience not available on paved streets and highways. This includes activities like recreational off-road trail riding, motocross competitive racing and trials competitions where riders make their way through various obstacle courses. If you’re just getting your start and you’re looking for a vehicle that will deliver that kind of ‘off-roading’ challenge or muddy good time [!], then this is the bike for you.

Unfortunately, most personal injury lawyers are all too aware of the high price victims pay for the thrill motorcycles provide. To get an idea of motorcycle accident stats, I consulted the latest 2011 Ontario Road Safety Report (ORSAR) and [once, again] [see “Off the Beaten Path: the Liability of All-Terrain Vehicles in Ontario, August 25, 2014] was annoyed by the lack of information included on motorcycle accidents in Ontario. Although, the report looked at motorcycle driver and passenger injuries and fatalities from 2002 to 2011, it never gave you the exact number of accidents there were each year. Unless, you assume that each injured victim represents an accident, you have no way of knowing exactly how many motor vehicle accidents involving motorcycles actually occurred that particular year. It follows driver fatalities have steadily and [at times] dramatically gone up since 2002, while those involving passengers has somewhat stabilised. Conversely, the number of injured drivers has consistently risen between 2002 and 2011 [from 1,161 up to 1,326], same as the number of passengers injured [from 311 up to 478]. According to this report, speed and not alcohol is the number cause of motorcycle accidents. Apparently 59% of motorcycle accidents between 2002 and 2011 were caused by excessive speed, which lead to a loss of control; only 12.5% were caused by impaired driving.

As per the 2010 Statutory Benefits Schedule [SABS] included in the Insurance Act, 1990, there are 3 classes of injury: minor, non-catastrophic and catastrophic. Actually, there are really only two types of injuries since the inclusion of the Minor Injuries Guideline (MIG) to the SABS in 2011. The reality is the SABS currently provides no technical definition for “non-catastrophic impairments”, so they occupy this gray zone between MIG and CAT criteria which personal injury lawyers and the victims they go to bat for have to navigate cautiously and often at great expense. Under the Act, motorcycle drivers and passengers and/or those in the vehicle they hit or were hit by are entitled to statutory accident benefits, such as medical and rehabilitation benefits, attendant care benefits and income replacement benefits, to name but a few. Of course, the amounts victims receive depend on the nature and severity of the injuries suffered in that particular motor vehicle accident. Unlike automobile drivers and passengers, there is no buffer zone between a motorcycle rider and just about anything in its environment, ‘specialty motorcycle gear’ notwithstanding As a result, the injuries these accident victims sustain can differ from the norm. Typical bike injuries include “road rash” [a very painful condition caused by burns and skin abrasions which left untreated correctly can become critical], arm or leg fractures and [sadly] often some form of disfigurement caused by burns and severe lacerations. While a leg fracture can get you up to $3,500 in medical and rehab costs under the MIG , “catastrophic” and “permanent cognitive and physical deficits” such as those caused by a severe spinal injury, brain trauma or paralysis can bring in a max of $1,000,000. Either way, those benefits are yours whether or not you’re at-fault in the collision as per your insurance policy.

The only benefits you may not be able to recover are those related to any relevant violation to either the Highway Traffic Act and/or the Criminal Code, like you would find in a drunk -driving case. Undoubtedly, motorcycles and booze can be a deadly combo. Whether drivers are street riding or “off-roading”  there are severe penalties for any who opt to DUI and breach the relevant provincial or federal statutes. It follows drivers caught with blood alcohol concentration [BAC] level greater than .08, or who fail or refuse to provide a breath or blood sample to police will be charged under the Criminal Code.

Motorcycles represent different things to different owners. A beautiful, custom made cruiser like the 2003 Harley-Davidson Dyna Super Glide Sport Charlie Hunnam aka Jax Teller [SOA] rides is considered a work of art to some. Others have a need for speed which a sport bike like the 2013 Kawasaki Ninja ZX-6R 636 can fulfill. Whatever your preference, there is one thing all riders share in common: extreme vulnerability. As previously underlined, motorcycle drivers and passengers have no protection from either the elements or other vehicles. A motorcycle-related collision can mean the ER or the graveyard and often it’s a crapshoot as to why the odds favour one over the other. Needless to say, the impact these types of accidents can have on your life or the life of your loved ones can be enormous and [in some cases], even life-altering. If you or your family has been involved in a motorcycle accident and would like to get some clarity around what insurance benefits you can claim under Ontario’s Statutory Benefits Accident Schedule, please consult a qualified personal injury lawyer who is familiar with the relevant provincial statutes and common law and allow them to get the compensation you deserve.