Restoring Access To Justice

INJURED CYCLISTS STRUCK DOWN BY BAD DRIVERS

by Patrick Brown

submitted Nov. 9, 2006

Recent changes made to the auto insurance, which were designed to reduce auto insurance premiums, have unfairly limited an innocent cyclist’s right to Access to Justice when struck down by a car. Although the changes have application to anyone who has been injured by a bad driver, they have particular importance to cyclists. The present legal restrictions apply to injured cyclists despite the fact that many cyclists do not benefit from the lowered auto insurance premiums because they do not drive and do not obtain auto insurance.

Moreover, developments since these changes were made have shown that they were unnecessary and simply feed huge profits to insurance companies

The two changes of immediate concern are the regulation which defines the verbal threshold (the “defining regulation”) and the deductible against pain and suffering claims being made by injured cyclists.

First, innocent cyclists struck down by cars are deprived of a claim for pain and suffering unless their injuries meet a strict test (the “verbal threshold”). The defining regulation, which affects accident occurring on and after October 1, 2003, made the verbal threshold a much more difficult test to meet. It is also discriminatory because the test for people outside the work force, like children, the elderly and stay at home parents is much stricter than test applied to the employed. This is so, even though they may suffer the exact same type of injuries.

This only requires regulatory change! It would not require a debate in the Legislature.

To add insult to injury, even if the injuries are sufficiently serious to get over the defining regulation, claims for pain and suffering not exceeding $100,000 are subject to a deductible of $30,000. The insurance company simply does not pay the first $30,000 of the innocent cyclist’s entitlement.

At the same time, the insurance industry has earned record profits since 2003 – estimated at exceeding $14 billion – and is expected to continue making large profits. These profits have been enjoyed before any significant cases have come through the system under the post-October 2003 changes. In other words, the October 2003 restrictions will only now start to impact on insurer profits, driving them up even further.

This has resulted in an insurance industry enjoying record profits and bulging bank accounts while cyclists seriously injured by bad drivers are deprived of fair compensation.

The level of insurer profits confirms that the defining regulation can be revoked and the deductible returned to pre-October 2003 levels, while at the same time maintaining premiums at current levels and allowing a viable insurance industry.