Baby Survives But Loses Mother in Car Accident

Toronto experienced several pedestrian/car accidents yesterday, including a very sad situation of a young 28 year mother who died while pushing her baby in a stroller. It appears that the 83 year old driver missed the red light facing the vehicle and caused this accident. Early reports are that the deceased Mom pushed her baby safely away just prior to being hit and killed. This story has been extensively reported upon, including by the Toronto Star and the National Post.

What Happens Regarding this Driver? The police shut down the intersection for a few hours after the accident, standard for fatality investigations. An Accident Reconstructionist was most likely called to the scene and an extensive report generated, including taking measurements, noting skid marks and damage debris and incorporating witness statements.

Charges are likely pending against the driver for breach of the Highway Traffic Act.

Given the driver’s age, Ontario has a more rigorous renewal system for driver’s licenses when you reach 80 years of age. The process includes testing once every 2 years and requires a vision test, as well as a paper quiz and a group session attendance.

Some other provinces have different forms of driver “education” suggested for older drivers. The Manitoba system provides education seminars for “older and wiser” drivers on a voluntary basis.

The Surviving Baby – Legal Issues

Assuming that the baby is unhurt and will survive, various questions exist for the baby (and family, if any) in the near term and longer term, including:

Immediate Concerns – Accident Benefits. There are Accident Benefits insurance payments available immediately to the baby, though these are fairly modest. Claims for certain ongoing expenses can be made, now and over the near term, to the Accident Benefits insurance carrier.

If the deceased mother has a vehicle with insurance, then the Accident Benefits claim will be made to that insurer. If the baby and deceased mother have no car, then the baby’s Accident Benefits claim will be made to the insurer for the 83 year driver.

The claim to the Accident Benefits insurer should start right away, to ensure that at the very least, some financial assistance is received for the baby immediately.

It is unknown whether there is another active parent for this baby. It is unknown whether guardianship is at issue for this child.

Longer Term Concerns. To protect the baby financially, a lawsuit must be considered. This is a long term process, which may take years to develop and resolve.

The lawsuit should focus internally on the investigation of the car accident, regarding who is at fault for the accident. This should be dealt with now and notwithstanding the thorough investigation by the police, issues that need to be considered include:

· verifying the traffic lights were in order at the time of the accident;
· the layout of the intersection and measurements regarding the driver’s sight lines and distance to impact;
· visiting the witnesses to ensure that the entire background story is obtained;
· getting a driver’s license history of the 83 year old driver; and
· re-creating the deceased mother’s last day to flag any issues which may affect liability.

Regarding the issue of damages in the lawsuit, the problems facing this baby are obvious. Who is going to raise the baby, including taking responsibility financially for caring, nurturing and educating this child?

Much work lies ahead when preparing the baby’s case for prosecution against the 83 year old driver. The focus would be on determining the type and quantum of loss to be experienced by this baby in losing its Mother. This would include a loss of financial support and emotional or other problems experienced by this child growing up without its Mother.

Gregory Chang
Toronto Insurance Litigation Lawyer