In Bingul v. Youngson, the Plaintiff was injured in a motor vehicle accident when he was rear ended by a dump truck just before an intersection. The Plaintiff sued for damages, however ICBC’S lawyer denied liability.

 

Counsel for the Plaintiff took the position that the Defendant’s negligence in not being able to stop in time is what caused the accident. ICBC’S lawyer argued that the Plaintiff’s negligence caused the accident, as the Plaintiff abruptly pulled into the Defendant’s lane when it was not safe to do so.

 

In the vast majority of cases, the driver of a car that strikes another car from behind is liable for the accident, as there is a prima facie case of negligence against the rear driver in such situations. The onus is on the driver of the rear vehicle to show that he or she did not cause the accident. It is usually a very high onus to meet.

 

In the case at bar, the Court had concerns with the Plaintiff’s credibility, given his inconsistencies in testimony vis a vis Examination for Discovery and trial, and vis a vis a statement made to an adjuster and his testimony at trial.

 

In finding the Plaintiff fully liable for the accident by determining that the sudden lane change made by the Plaintiff negated the prima facie assumption of liability on the rear driver, the Court commented :

 

[47] I have already noted a significant inconsistency between the statement Mr. Bingul made to an insurance adjuster on November 28, 2011 and the testimony he gave at trial about the timing of the collision in relation to the green light for westbound traffic on Broadway; and some discrepancies between answers given on examination for discovery and at trial. Mr. Bingul’s testimony about when he first saw Mr. Youngson’s vehicle and when that vehicle changed lanes, and from which lane, was less than precise.

 

[53] Having considered these and other matters relevant to credibility, and taking into account the testimony of Mr. Tupper, which supports the testimony of Mr. Youngson, I conclude that I must and do prefer the evidence of Mr. Youngson about the circumstances of the accident. I conclude that Mr. Youngson has provided an explanation for the collision − the sudden and unexpected lane change made by Mr. Bingul − that negatives the prima facie assumption of liability on the following driver.

 

[55] Mr. Bingul was aware that there was a large and heavy vehicle in the lane. I conclude that it was solely Mr. Bingul’s sudden and negligent move into the lane of travel of Mr. Youngson’s large and heavy vehicle that created the risk of collision and resulted in the accident.

Although the vast majority of time the person in the vehicle that has been rear ended will not in any way be responsible for the accident, in some situations this will not be the case. For example, if you suddenly swerve into another person’s lane, and slam on your brakes, you could very well be entirely liable for the accident, even if you are rear-ended. Another example is when you stop suddenly for no apparent reason, such as stopping while traveling through an intersection on a green light. In such circumstances, there can be shared liability between yourself, and the person who struck you. Section 162 of the Motor Vehicle Act can also come into play when you are following someone too closely.

 

In Langille v. Marchant, the Plaintiff rear ended another vehicle on a bridge. She then got out to go speak to the other driver. She did not activate her hazard lights in any way. Another vehicle struck the Plaintiff’s vehicle from behind as it attempted to avoid the accident. The trial judge ruled that the Plaintiff was 60% at fault, whereas the Defendant was 40% at fault. The Plaintiff appealed to the British Columbia Court of Appeal, however the appeal was dismissed, with the original liability determination remaining intact.

 

[19] Activating emergency flashers is a step Ms. Langille certainly could have taken. It was open to the trial judge to find that it was negligent on the part of Ms. Langille to obtain particulars from the other driver before ensuring the safety of the location of the accident, or at least improving the situation for oncoming drivers by activating her flashers. It was also open to the trial judge to find doing so would have reduced the likelihood of impact or the severity of the impact that occurred. That is the logical implication of the finding that Ms. Marchant’s late recognition of the hazard caused or contributed to the accident. The activation of flashers would have made Ms. Langille’s car more visible and made it harder for Ms. Marchant to fail to notice its presence or note earlier that it was not moving, and to take earlier evasive measures.

 

[21] I would not disturb the trial judge’s findings that it was negligent to turn off the car and leave only its running lights on in the middle of a busy bridge at night in a location where one would not expect vehicles to be stopped, nor would I disturb the finding that the negligence contributed to the accident.

Although the vast majority of time the person in the vehicle that has been rear ended will not in any way be responsible for the accident, in some situations this will not be the case. For example, if suddenly swerve into another person’s lane, and slam on your brakes, you could very well be entirely liable for the accident, even if you are rear-ended. Another example is when you stop suddenly for no apparent reason, such as stopping while traveling through an intersection on a green light. In such circumstances, there can be shared liability between yourself, and the person who struck you. Section 162 of the Motor Vehicle Act can also come into play when you are following someone too closely.

 

In Stanikzai v. Bola, the driver of the car that was rear-ended was found to be 75% at fault. The Court, unable to reconcile the different versions of events of the Plaintiff and Defendant as to what actually transpired, relied on the testimony of an independent witness that the Defendant vehicle had pulled abruptly into the Plaintiff’s lane in order to make a U-turn.

 

[8]          But while liability for a rear end collision usually rests entirely with the following driver, that is not an invariable result. For example, in Saffari v Lopez, 2009 BCSC 699, both drivers were found to be equally at fault for a rear end collision. In that case, the front driver stopped or slowed suddenly, ostensibly to retrieve a fallen cigarette, but the court found that the rear driver was travelling either too fast or too close behind to stop when confronted with the hazard.

 

[9]         The plaintiff and the defendant in this case give conflicting evidence that cannot be reconciled. In attempting to determine what happened, on the balance of probabilities, I prefer the evidence of the only independent witness, Mr. Tiwana. He describes the defendant moving suddenly into the plaintiff’s lane in circumstances where the plaintiff did not have time to stop. That is not consistent with the defendant’s evidence of the lapse of time between her lane change and the collision and I do not accept her evidence on that point. I do accept her evidence that she had no reason to be making a u-turn and was not attempting one, but I find that her turn to the left on impact likely created the mistaken impression of a u-turn.

 

In Yacub v. Chipman, the Plaintiff was proceeding through an intersection when she stopped abruptly for “no apparent reason”. The Defendant, even though he was following too closely, was only found to be 25% at fault for the accident.

 

[46]         …  I must conclude that she violated s. 189(1)(c) in stopping in the middle of the intersection for no apparent reason.

 

[47]         This breach also puts her in violation of s. 144(1)(a) and (b) in driving without due care and attention and without reasonable consideration for Mr. Chipman using the highway behind her.

 

[48]         I accept the evidence of Ms. Hallett that Mr. Chipman was only about one car length behind the plaintiff’s vehicle as the plaintiff’s vehicle entered the intersection…

 

[49]      Mr. Chipman’s first evidence on this issue was that he got a lot closer to the plaintiff’s vehicle than two to three car lengths by the time the plaintiff’s vehicle entered the intersection. This evidence would equate with him closing the gap to about one car length as Ms. Hallett says.

 

[50]      It was only in cross-examination that Mr. Chipman sought to qualify this evidence by saying that he only meant closing the gap down to two car lengths. I reject this qualification in his evidence as it does not fit with his earlier description of “a lot closer” than two to three car lengths.

 

[51]         Accordingly I conclude that as Mr. Chipman entered the intersection he was following more closely than was reasonable and prudent having regard to the speed of the two vehicles contrary to s. 162(1) of the Motor Vehicle Act.

 

[52]         This also put him in breach of s. 144(1)(a) and (b) for the same reasons.

 

[53]         In my view the fair conclusion from these findings is that liability should be apportioned against the plaintiff 75% and against the defendant 25% and an order will go to that effect. The plaintiff’s liability is greater because Mr. Chipman would have no reason to think she would stop in the middle of the intersection while the plaintiff had to know that this would be unexpected to following traffic.

In Cue v Breitkreuz, the Court accepted the testimony of an eyewitness who stated that the Plaintiff sped up, pulled in front of the Defendant’s vehicle, then stopped abruptly, leaving the Defendant no opportunity to avoid hitting the Plaintiff from behind.

 

[6]       The defendant, Roy Breitkreuz, was driving south on Main Street in a five-ton truck. He testified that he was travelling at about 50 kph when he crossed 41st Avenue and saw the plaintiff’s vehicle ahead, trying to make a right turn at 43rd Avenue onto Main Street. The defendant said he moved from the right to the left lane. He said that he saw the plaintiff’s car make the right turn and accelerate in the right lane, although his truck was catching up to it quickly. Suddenly, the defendant said, the plaintiff’s car moved to the left lane, then braked. He said the plaintiff was only two or three car lengths from the intersection of 44th Avenue when he completed the lane change. The defendant said he first took his foot off the accelerator, but applied his brakes in a “panic stop”, when he saw the plaintiff’s brake lights come on. He said he saw no turn signal before the collision, only brake lights.

 

[15] Where there has been a rear-end collision, the onus shifts to the following driver to show that he or she was not at fault:  Robbie v. King, 2003 BCSC 1553 at para. 13. It is also the case that the driver of a following vehicle must allow a sufficient distance to stop safely in the event of a sudden or unanticipated stop by the vehicles ahead:  Pryndik v. Manju, 2001 BCSC 502 at para. 21, aff’d 2002 BCCA 639; and Rai v. Fowler, 2007 BCSC 1678 at para. 30.

 

[16] On the evidence before me in this case, I find that the defendant has discharged the onus upon him. I find that the plaintiff, by changing lanes in the manner that he did, created the situation in which the defendant did not have a safe stopping distance behind the plaintiff’s vehicle. Had the plaintiff not stopped, the defendant would have had the opportunity to slow down and allow the distance between them to increase. But when the plaintiff stopped immediately following the lane change, the defendant had no chance to avoid the collision. The defendant had no reason, in the moments leading up to the accident, to anticipate the plaintiff’s lane change and stop.

 

In Saffari v Lopez, the Plaintiff was following the Defendant’s vehicle, when the Defendant’s vehicle came to a fairly sudden slowdown. The Plaintiff struck the Defendant’s vehicle from behind. Both parties were found to be 50% at fault.

 

[40]           That, however, does not end the matter as it relates to the responsibility of Mr. Lopez.  He acknowledged that the area where he applied the brakes was not an area of the road where a following vehicle would expect him to slow down or stop. Further, he agreed that his actions were “sudden”.

 

[41]             Section 144(1)(b) prohibits drivers from driving without reasonable consideration for other persons using the highway.

 

[42]            Such would include, in my opinion, consideration of the circumstances of stopping or suddenly slowing one’s vehicle in the flow of traffic where other viable options, such as exiting the roadway, existed.  The emergency resulting in the deceleration of the Lopez vehicle was self-created.  In any event, there is no suggestion that the cigarette had fallen onto the driver’s lap or otherwise onto his person.  Mr. Lopez’s reaction, that is to suddenly slow or stop his vehicle, was but one of several choices he had.  He acknowledged these included signalling an intention to change lanes to reach a point of safety where he could stop his vehicle without impeding traffic or putting on four-way flashers to alert following vehicles and other users of the road to an emergency.

 

[43]               I find Mr. Lopez was negligent in suddenly stopping or slowing his vehicle on the roadway …

 

[44]           I also need to consider the actions of the plaintiff Ms. Saffari and what, if any, responsibility rests with her actions leading to the collision.

 

[45]           I must reject, almost in its entirety, the evidence of Mr. Javanpour as it relates to the driving of Ms. Saffari prior to and leading to the accident.

 

[46]           His evidence concerning matters such as the conversations he overheard, the use or availability of a cell phone during the journey preceding the accident coupled with his description and explanation as to the Jeep’s running lights, all make his evidence of events unreliable.

 

[47]           Ms. Saffari’s description of events, while more credible in terms of the totality of the evidence, is equally wanting in some areas.  Her description of the conversation with Ms. Pfeifer coupled with her denial of it on discovery, her varying estimates of her speed and that of the Jeep, her admission that she “momentarily lost sight of the Jeep” coupled with the elaborate description of her evasive actions also cause me to question more important aspects of her evidence as it relates to the moments or seconds leading to the accident.

 

[48]           Ms. Saffari never said the Lopez vehicle slammed on the brakes.  She testified she saw the brake lights of the Jeep come on as she entered the arc of the curve.  She did not describe a panic stop nor is such consistent with the evidence of Mr. Lopez.  Her evidence as to “losing sight of the Jeep” simply makes no sense if her estimate as to the separation between the vehicles and her speed is consistent and she was maintaining proper lookout.  Were she travelling both at the speed she describes and the distance from the Jeep when she saw the lights come on, she could have stopped.  This is not a case where the doctrine of “agony of collision” applies.  Drivers are daily confronted with vehicles in front of them stopping or slowing for all sorts of reasons.  If Ms. Saffari did react in the elaborate manner she and Mr. Javanpour described in their evidence then she did so because she was travelling either too fast for conditions or too close behind the Lopez vehicle to bring her car to a timely stop once confronted by the hazard posed by the defendant’s driving.

 

[49]           In the circumstances, I find the plaintiff and defendant equally at fault for the accident.  The defendant Ms. Pfeifer is accordingly liable, as owner, in like proportion to Mr. Lopez.

In Singleton v Morris, the Plaintiff was violently rear ended by the Defendant, and sued for damages. The lawyer for ICBC argued that the collision occurred due to a slippery substance that was on the road. The trial judge dismissed the Plaintiff’s claim, and the British Columbia Court of Appeal dismissed the appeal.

 

[32]            The burden of proof in cases of negligence is set out in Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 424. There, Mr. Justice Major stated that the maxim of res ipsa loquitur should be treated as expired. He said:

 

27                   It would appear that the law would be better served if the maxim was treated as expired and no longer used as a separate component in negligence actions.  After all, it was nothing more than an attempt to deal with circumstantial evidence. That evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed.  [Emphasis added.]

 

[33]               Mr. Justice Major’s statement sets out the general approach in negligence cases.  That is, the trier of fact should weigh both the circumstantial evidence and the direct evidence, where available, in determining whether the plaintiff has established a prima facie case of negligence.  In cases involving both direct and circumstantial evidence, the circumstantial evidence, and any inferences that may be drawn from it, is but one component of the case.  Where, however, there is no direct evidence, circumstantial evidence and the inferences that may arise from it may form the entire basis of the plaintiff’s case.

 

[35]           Here, because the plaintiff failed to establish that the defendant was driving at an excessive speed, there was no direct evidence of negligence on the part of the defendant.  Therefore, the plaintiff was forced to rely on circumstantial evidence and sought to establish an inference of negligence because the accident was a rear-end collision.

 

[36]           Madam Justice Newbury examined the drawing of such inferences and the rebutting of them through the defence of explanation in Nason v. Nunes, 2008 BCCA 203 (CanLII), 2008 BCCA 203.  In Nason, a car had gone off the road. Newbury J.A. said:

 

[14]   … This is not to suggest that an inference may not be drawn as a matter of fact in a particular case, where a vehicle leaves the road or a driver loses control; but as the trial judge stated … such an inference will be “highly dependent on the facts” of the case and the explanation required to rebut it will “vary in accordance with the strength of the inference sought to be drawn by the plaintiff.”  [Emphasis in original.]

 

[37]           In Fontaine, Mr. Justice Major applied the law relating to such inferences and the defence of explanation to the facts of the case before him, stating:

 

33        If an inference of negligence might be drawn in these circumstances, it would be modest.  The trial judge found that the defence had succeeded in producing alternative explanations of how the accident may have occurred without negligence on Loewen’s part.  Most of the explanations offered by the defendants were grounded in the evidence and were adequate to neutralize whatever inference the circumstantial evidence could permit to be drawn.  The trial judge’s finding was not unreasonable and should not be interfered with on appeal.

 

[38]              Thus, in cases such as this, the trial judge may – but is not required to – draw an inference of negligence from the fact there was a rear-end collision.  The defence, however, may attempt to rebut such inferences through the defence of explanation.  A defence of explanation, as stated in Hackman v. Vecchio (1969), 4 D.L.R. (3d) 444 at 446 (B.C.C.A.) is an explanation of how an accident may have occurred without the defendant’s negligence.  The defendant does not bear the onus of proving how the accident did happen.  The trial judge drew an inference of negligence in this case.  She said, “In this case, given that this was a rear-end collision in which the truck was properly stopped and was there to be seen, there is a prima facie case of negligence.”  Further, the trial judge correctly noted that Mrs. Morris “has to advance an explanation as to how the collision may have occurred without negligence on her part.”

 

[39]             Here, the inference of negligence was, as the trial judge correctly held, adequately explained.  The plaintiff had failed to establish that Mrs. Morris was driving at an excessive speed or braked too late.  The trial judge accepted the defendant’s explanation of the presence of the oily substance on the road.  The explanation was “adequate to neutralize whatever inference the circumstantial evidence could permit to be drawn.”  The trial judge’s finding was not unreasonable and should not be interfered with on appeal.