The popularity of off-road vehicles, particularly ATVs, in Canada has seen a huge increase over the past 20 years, as has the number of severe injuries and deaths, particularly for children.
Children and young adults more frequently suffer serious injury or death in ATV and snowmobile accidents, than older adults. Government-certified helmets are mandatory for anyone riding an ATV or snowmobile in Ontario and this safety gear is critical in reducing the risk of head and brain injuries which is the leading cause of death in off-road vehicle accidents. However, even helmets cannot prevent death when reckless driving of an off-road vehicle results in a devastating crash. By mid-June of 2015, there were already nine fatalities in ATV crashes in this year in Ontario.
As with any motor vehicle in Ontario, all off-road vehicles require a permit and licence plate, and must also be insured under a motor vehicle insurance policy. Currently, the Ontario Off-Roads Vehicle Act, 1990, mandates the following requirements for riding an ATV or another vehicle off-road:
- The driver must be at least 12 years of age, unless they are supervised by an adult or are driving on land owned by the ATV owner.
- The vehicle must carry the registration permit.
- The driver and passengers must wear a government-approved helmet securely fastened with a chin strap.
With regards to liability, the Act states that the owner of an off-road vehicle is liable for injuries caused by a driver as follows: “Where the driver of an off-road vehicle, who is not the owner thereof, is liable for damages for injury or damage arising out of the operation by the driver of the vehicle with the consent of the owner, the owner is jointly and severally liable.”
The Act also states that anyone who drives an off-road vehicle carelessly and without reasonable consideration of others is guilty of an offence. The primary causes of serious injuries resulting from an accident involving an off-road vehicle are alcohol use, excessive speed, inexperience and riding at night. Another high risk factor in fatalities is riding without a helmet, which continues to occur despite being against the law in Ontario.
The Ontario Ministry of Transportation has mandated the following requirements for off-road vehicles and ATV’s:
When on-road, drivers must meet the following criteria:
- Minimum age of 16 years old
- Must hold at least a G2 or M2 licence
- Required to wear an approved motorcycle helmet, securely fastened with a chin strap
- Must wear a seat belt, where provided
- Must adhere to the following speed limits:
- no more than 20 km/h where the posted speed limit is 50 km/h or less
- no more than 50 km/h where the posted speed limit exceeds 50 km/h
- Must drive in the same direction as traffic
- Must travel on the shoulder unless it is unsafe or impassable
- Required to have headlights and tail lights on
When on-road, these are the requirements for passengers.
- Minimum age of eight years old
- Must wear a seat belt or use foot rests, where applicable
- Required to wear an approved motorcycle helmet, securely fastened with a chin strap
Twenty-five per cent of fatalities associated with ATV’s involve children 15 years old and younger. The Canadian Paediatric Society reports that there was a 50 per cent increase in injuries and hospitalizations from ATV accidents from 1996 to 2001 and 36 per cent of these were in children from 5 to 19 years of age. The ATV industry in Canada recently recommended, for safety considerations, that children under 16 and particularly, under 12, should ride ATV’s with a smaller engine size. What’s problematic is that most ATV owners, including families, only own an adult size ATV which they allow their children to ride. Also, smaller ATV’s have not proven to be safer for children.
In July of 2015, a nine year old child was in critical condition after an ATV crash on a private property near Aylmer, Ontario. The ATV was being driven by a six year old child who apparently lost control after accidentally pressing the throttle while negotiating a curve, then collided with two pine trees. The remaining children on board, along with the driver included a two year old, four year old and another nine year old, who were fortunately uninjured in the crash. No one was wearing a helmet at the time of the accident.
The Canadian Paediatric Society warns that adolescents and children are at a much higher risk of injury as ATV drivers because they are lacking in knowledge, strength, physical size, and the motor and cognitive skills to handle these vehicles safely. In order to maneuver an ATV or snowmobile, drivers need to shift their weight around in varying terrain, which is exceedingly difficult for a child to accomplish. In 2012, the Society recommended that: helmets are mandatory throughout Canada; regulations prohibit anyone under the age of 16 from driving an ATV; training courses become a requirement; and also that passengers be prohibited on an ATV. So far, only the first recommendation, for mandatory use of helmets, has become law in Ontario. However, some Canadian provinces have adopted more of these safety recommendations. In Quebec, only drivers 16 and older can operate an adult size ATV; also, Quebec and most Maritime Provinces require children to complete a training course prior to operating an ATV.
The Canadian Paediatric Association is not alone in recommending that regulations for riding off-road vehicles be strengthened to set the minimum age to 16, to reflect standards for other motor vehicles in Canada. Many respected medical and child-safety organizations are in agreement that this change would result in fewer deaths and injuries for children, including the Canadian Medical Association, the Canadian Association of Paediatric Surgeons, Safe Kids Canada, the American Academy of Paediatrics, the American College of Surgeons and the American Association of Orthopedic Surgeons.
The Canadian Safety Council reported that 850,000 Canadians owned an ATV in 2004 and this number continues to grow. ATV’s are as dangerous as motorcycles even though they are normally used off-road. In Ontario, about 15 people a day are seen in hospital emergency rooms for injuries resulting from an ATV crash. Snowmobiles and ATV’s together account for approximately 13 per cent of hospitalizations, 12 per cent of permanent partial disabilities and 11 per cent of permanent disability.
When it comes to assessing liability in an ATV or snowmobile accident, as is the case in any sports injury, the accident will be assessed to determine whether the actions of the parties presents necessary risks and behaviour that is normal to the sport. If the action or event is deemed to be a ‘normal risk’, the person causing the accident will likely not be found negligent in causing injury.
The criteria of an action that is ‘normal’ to the sport of snowmobiling was addressed in the trial, Dolby v. McWhirter. A man sustained fractures and soft-tissue damage in a snowmobiling accident near Arthur, Ontario. The accident occurred when his son-in-law, who was riding another snowmobile, accidentally collided with the rear of the plaintiff’s vehicle while attempting to pass, which caused the plaintiff to lose control and tumble over a ridge and down a steep incline. Both men were experienced snowmobilers and understood the dangers of the sport; however, the judge found the defendant liable for the plaintiff’s injuries, and damages included an award for pain and suffering. The judge reasoned that “the danger of being struck from the rear by an overtaking snowmobile is not an obvious or necessary risk normal to the sport.”
In 2010, a motorcyclist collided with an ATV at the intersection of Morris Road and Biggar Road in Niagara Falls when the ATV driver allegedly failed to stop at a stop sign. In Davis v. Grand, 2003, the motorcyclist was suing the ATV driver, the City of Niagara Falls and the Regional Municipality of Niagara alleging that overgrown bushes and trees obscured the view of the stop sign which contributed to the accident. In this trial, the Municipality was successful in their request to be removed from liability in the plaintiff’s claim. The Municipality and City were both initially named in the suit because the Municipality had transferred responsibility for the road to the City just three months prior to the accident.
Negligence and liability in the plaintiff’s injuries were not yet addressed in court; the City’s liability will rest on whether it met its obligation under the Municipal Act to keep every highway and bridge in its jurisdiction in repair. In the case of default, the City of Niagara Falls can potentially be found liable for damages sustained by the plaintiff, under the Negligence Act.
There are many actions that responsible off-road vehicle drivers can take to keep themselves and others safe. Some of the most obvious are to avoid behaviours proven to be most likely to result in fatality or serious injury, which include driving under the influence, driving too fast, and driving under circumstances and in a manner that exceeds the driver’s capabilities or experience.
Safe driving recommendations outlined by The Ontario Ministry of Transportation
- take an off-road vehicle safety course and learn to ride from an expert
- don’t ride beyond your skill level; stay in control
- consider trail road and weather conditions
- use caution when turning, climbing or descending from hills
- always drive sober
- ride with a buddy and let others know where you are going and when you expect to return
- ride only in designated areas
- be respectful of others on the trail
- read the operator’s manual before riding
- young and novice drivers must adhere to graduated licencing requirements for on-road driving
- complete a pre-ride inspection, including checking gas and other fluid levels, brakes, lights and tire pressure
- keep noise levels low and be respectful of wildlife
Persons seriously injured in an off-road vehicle accident are entitled to make an accident benefits claim with their insurance company. You may also be eligible to sue the person responsible for the accident. The amount of compensation or damages to which you are entitled will vary with the severity of your injuries, and may include loss of income, medical and rehabilitation expenses, attendant care costs and non-pecuniary damages (for loss of enjoyment in life).
The Injury Lawyers of Ontario (ILO) vehicle accident lawyers are experts in negligence claims and insurance accident benefits claims. Our experienced staff welcome accident victims and their families to contact us for a no-obligation consultation that will allow you to have your questions and concerns addressed. We will zealously represent your rights if your accident claim has been delayed or dismissed by an insurance company, or if you wish to pursue a negligence personal injury claim against the ‘at fault’ party. Call us today to find out how we can help you get the compensation you are owed.