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Can I Sue as a Passenger after a Car Accident?

By Matt Lalande in Car Accidents, Hamilton Car Accident Lawyer on August 31, 2023

Can I Sue as a Passenger after a Car Accident?

Our Hamilton Car Accident Lawyers Answer the Question

The answer is yes, passengers in car accidents have absolute rights and can sue for compensation after a car accident. In fact, many, if not most car accident cases our Hamilton Car Accident Lawyers deal with involve the passengers in motor vehicles who have suffered serious injuries and require compensation to help get them back to normal life. As a passenger involved in a car accident, you will bear (in most cases) zero responsibility and liability will almost always be found on the driver in the car you are traveling in or the driver of the other car(s) involved in the accident. Claims can be made against all drivers (who will be defended by their insurance companies) directly involved in the collision.

In this article we will review the rights of passengers and a summary of the compensation which hurt passengers may be entitled to after a car accident. Remember, if you or a loved one has been involved in serious car accident call us for your free consultation. Matt Lalande has been representing hurt victims since 2003 and has recovered millions in compensation for individual and families in Hamilton and all throughout Ontario.

Call us today, no matter where you are in Ontario at 1-844-LALANDE or local in Hamilton and throughout Southern Ontario at 905-333-8888. Alternatively, you can email us confidentially through our website or chat 24/7 with our live chat operator.

Two Things to Think About – No-Fault Benefits and a Lawsuit

No-Fault Benefits – Otherwise Known as Accident Benefits

If you were hurt as a passenger there are two issues to think about. The first is your entitlement to “no-fault” benefits (which are technically called accident benefits). Accident benefits in Ontario refers to a set of benefits provided by one’s car insurance policy to help cover certain costs associated with a motor vehicle accident, regardless of who is at fault. The accident benefits can help to cover:

  1. Medical, Rehabilitation and Attendant Care Costs: This includes costs not covered by the Ontario Health Insurance Plan (OHIP), such as physiotherapy, chiropractic services, and long-term personal care. There is typically a limit of $65,000 unless optional benefits are purchased or a person is catastrophically injured. At this point the benefits would be lifted to $1,000,000.00.
  2. Income Replacement Benefits (IRB): If you cannot work due to your injuries, you can receive a portion of your lost income. Unless optional benefits were purchased, the IRB is typically payable at a weekly amount of $400.00.
  3. Non-Earner Benefits: If you don’t qualify for the IRB because you were not working at the time of the accident but you still can’t carry on with most of your daily activities, you might be eligible for these benefits. The non-earner benefit is payable for two years at $185.00 a week.
  4. Death and Funeral Benefits: If the accident results in death, these benefits can be paid to the deceased’s dependents and can help cover funeral expenses.
  5. Other Expenses: This can include things like repairing or replacing glasses, clothing damaged in the accident, or paying for someone to take care of your home while you recover.
A Lawsuit for Compensation

The other facet to consider is a lawsuit against the driver(s) who caused the accident. By law, you are fully entitled to pursue damages against all drivers who may presumably be found negligent and liable for part or all of the car accident you were involved in.

A “negligent motorist” in Ontario refers to a driver who fails to act with the standard of care that a reasonably prudent driver would exercise under similar circumstances, leading to harm or damage to another person, vehicle, or property. In other words, it’s a driver who does not drive as safely or responsibly as they should and, as a result, causes an accident or injury.

Some examples of behaviors or actions that might be considered negligent by a motorist include:

  1. Speeding: Driving above the speed limit or too fast for road conditions.
  2. Failing to Yield: In Ontario, “failing to yield” refers to a driver not giving the right-of-way to other vehicles or pedestrians when required by law. The rules for yielding are established to ensure the smooth and safe flow of traffic, especially at intersections, crosswalks, or when vehicles merge onto highways. When a driver fails to yield, they don’t allow another driver or pedestrian to proceed as they have the right to, which can lead to car accidents.
  3. Driving while Fatigued: A driver who drives while fatigued may no doubt cause a car accident.
  4. Distracted Driving: Using a cellphone, eating, adjusting the radio, or engaging in any other activity that diverts attention from the task of driving.
  5. Impaired Driving: Operating a vehicle under the influence of alcohol, drugs, or any other substance that impairs judgment or motor skills.
  6. Failing to Obey Traffic Signs or Signals: Running red lights or stop signs, not yielding when required, or ignoring other traffic signs.
  7. Improper Lane Changes: Not signaling when changing lanes, cutting off other drivers, or changing lanes in unsafe conditions.
  8. Following Too Closely: Tailgating or not leaving enough distance between vehicles.
  9. Not Adapting to Weather or Road Conditions: For example, not slowing down during rain, snow, fog, or when road conditions are slippery or compromised.
  10. Driving Without Proper Maintenance: Operating a vehicle with known defects or without proper maintenance, such as bad brakes or burnt-out lights.
  11. Improper Left Turns: A driver approaching an intersection that is controlled by a traffic light, where that light is showing them a green signal, is entitled to proceed through that intersection on the assumption that drivers approaching the intersection from other directions, and who are necessarily being shown a red light, will stop – and not turn left in front of them.

Remember – a passenger can sue the driver of the car that he/she was a passenger in – even if that person is a spouse or relative. We have seen many occasions where one spouse – through the negligent operation of a motor vehicle – have caused injuries and losses to another spouse or child or other family member. Talk to one of our Hamilton Car Accident Lawyers for more information.

What Compensation can a Hurt Passenger Sue for after a Car Accident?

The compensation depends on what the losses are. In Ontario, car accident lawyers label damages as “pecuniary or non-pecuniary” but we prefer to explain to our clients that compensation can be categorized as “economic or non-economic”.

What are Non-Economic Damages?

In terms of non-economic damages – these are losses which flow from the car accident victim’s injuries that are not quantifiable in monetary terms. Even though we recognize that money cannot compensate the victim for these losses, a financial award is provided in recognition of these losses and in an attempt to provide the injured plaintiff with a pool of funds with which to make the injuries more bearable. Examples of non-economic damages are compensation for pain and suffering (both physical and psychological) the loss of enjoyment of life, loss of expectation of life, and/or loss of amenities.

Because it is impossible to assign an actual monetary value to personal injuries, non-pecuniary damages have been quantified on a “functional” basis – or in other words, the disruption of a person’s overall function.

The aims of the functional approach to non-pecuniary damages is to compensate the the car accident victim for:

  • His/her accident-related costs of future care.
  • His/her distress of having been injured.The additional amount is not intended to place a value on the injury or the distress per se there should be an upper limit on the amount and there should be some uniformity (and thus predictability) to the amount awarded for similar injuries.

In setting the amount to be awarded, the court should consider the car accident victims’s”

  • Subjective pain and suffering.
  • Loss of amenities.
  • Loss of expectation of life.
  • Any other factor the court finds relevant to the victim’s subjective experience of the functional loss.
  • The amounts awarded for similar functional losses in other court decision, indexed to inflation.
Is a Passenger Compensated for Each Injury Separately?

No, the law does not work this way. Unlike economic damages, non- economic losses are assessed on a global basis without reference to separate and distinct injuries.

For example, the court would not assess $30,000.00 for the victim’s broken leg, $10,000.00 for her broken nose, and $5,000 for her broken pinky toe. Rather, the court would assess the overall impact the victim’s injuries on her life.

What are Economic Damages?

Economic Damages are quantifiable damages. For example, a victim may be compensated for a lost opportunity to earn income as a result of the accident. Some of this loss will be compensated as part of the special damages (or past and present) portion of the settlement or award. For most car accident victims, the general damages (or future) portion of lost income will be more significant.

In order to determine the value of a car accident victim’s loss of earning capacity, the court will consider such things as:

  • The educational background of the plaintiff;
  • Any training or experiential qualifications of the plaintiff;
  • Tax returns filed by the plaintiff;
  • Employment history of the plaintiff from before and after the accident, such as wage/salary history, including the average wage/salary over the past several years and average increase per year, performance reviews, bonuses, and promotion history and prospects; and
  • comparative employment prospects for similarly educated, trained and experienced individuals (i.e. what other individuals in the plaintiff’s pre-accident situation have done or are likely to do in their careers).

A court will also normally consider:

  • How long the victim would likely have worked (i.e. how many more years of loss there are to consider);
  • The likelihood of the car accident victim experiencing periods of unemployment or underemployment; and
  • The extent of work-related expenses that will no longer need to be incurred.

There are also cost of care issues that can be claimed. Remember, the primary purpose of the court’s award to an injured plaintiff is to ensure that the plaintiff is adequately cared for due to deficits caused by her injuries. The plaintiff can therefore recover for the cost of necessary future care while she requires it to recover from her injuries or to ameliorate her circumstances as a result of her injuries. In cases where a plaintiff is seriously injured, significant and costly care may be required for the remainder of the plaintiff’s life.

In general, care is divided into several categories:

  • Attendant care;
  • Medical care and
  • Housekeeping and home maintenance.

In terms of the loss of housekeeping capacity, individuals who have sustained injuries as a result of a car accident may be entitled to pursue a claim for “loss of housekeeping and home maintenance capacity.” This specific claim seeks to address the diminished or lost ability of an injured party to perform customary household duties, such as cleaning, cooking, and home maintenance, consequent to their injuries.

In most cases, this will be limited to the costs associated with the place where the injured plaintiff lived at the time of the accident, but it may also include the costs of another residence (for instance if the plaintiff was required to move because she was no longer able to climb stairs after the accident and lived on the second floor).

Housekeeping claims are normally quantified in terms of services which have been incurred as to the date of trial or settlement, as well as the future anticipated costs of indoor and outdoor housekeeping capacity.

Lastly, in order to receive an award for lost capacity to undertake housekeeping or home maintenance in the future, our Province’s top Court in the case of McIntyre v. Docherty reported that a victim does not need to convince the court that she will hire a third party to provide assistance.

Can a Passenger ever be At-Fault for an Accident?

It is rare – but a passenger can contribute to his or her own injuries. What does this mean?

Contributory negligence arises when your own negligence contributes to your injuries. In the context of an car accident, a passenger can sometimes be found contributorily negligent, which means that you bear some responsibility for your own injuries due to your own actions or sometimes – your inactions. Here are some circumstances where a passenger might be found contributorily negligent:

  1. Not Wearing a Seatbelt: If a passenger fails to wear a seatbelt and suffers injuries that either wouldn’t have occurred or would have been less severe had they been wearing one, they might be found contributorily negligent.
  2. Distracting the Driver: If the passenger’s actions, such as loud behavior or physical interactions, distract the driver and contribute to the accident, the passenger might bear some responsibility.
  3. Entering a Vehicle with an Intoxicated Driver: Voluntarily getting into a vehicle with a driver known to be under the influence of alcohol or drugs could lead to a finding of contributory negligence.
  4. Encouraging Unsafe Behavior: Urging the driver to speed, race, or engage in other reckless behaviors might result in the passenger sharing some of the blame if an accident occurs.
  5. Interfering with Vehicle Controls: For instance, if a passenger grabs the steering wheel or tampering with gear shifts, leading to an accident.
  6. Failing to Speak Up: In certain situations, a passenger’s failure to warn the driver of an apparent hazard might be seen as contributory negligence, especially if they had a clear vantage point that the driver did not.
  7. Getting in a Vehicle with a Driver Known to be Incompetent: For instance, if the driver is known to be unlicensed or inexperienced, and the passenger still chooses to ride with them.

In Ontario, the Defendant bears the onus of proof on a balance of probabilities. Also important to know is that if there is a finding of contributory negligence, then the amount of compensation a person can receive would be reduced by your proportion of contributory negligence. Given the complexities, it’s crucial for individuals involved in car accidents to speak to a Hamilton car accident lawyer to understand their rights and potential liabilities in their specific circumstances.

Are you a Passenger who has been Hurt in a Car Accident?

If you’re a passenger who has suffered life changing injuries in a car accident, it’s important that you speak to a Hamilton Car Accident Lawyer about your legal rights to compensation. Matt Lalande has been representing car accident victims not only in Hamilton, but all over Ontario since 2003 and has recovered millions in compensation.

Call us today, no matter where you are in Ontario at 1-844-LALANDE or local in Hamilton and throughout Southern Ontario at 905-333-8888. Alternatively, you can email us confidentially through our website or chat 24/7 with our live chat operator.

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