In rear end collisions, liability is often considered to be automatic. But the Court of Appeal has reminded us that there is no such fixed rule.

In Martin-Vandenhende v. Myslik, 2012 ONCA 53 (C.A.), the plaintiff alleged the defendant rear-ended her vehicle as she slowed to make a left turn. She testified she activated her left turn signal prior to slowing down and commencing the turn. The defendant’s version of events was that the plaintiff activated her right turn signal and pulled to the right, which he interpreted to mean she was pulling over to allow him to pass. As he pulled around her vehicle, she turned left into him.

The trial judge found in favour of the plaintiff. He held that “taken at its highest”, the signal was “perhaps confusing” and the plaintiff was “perhaps giving [the defendant] inconsistent signals”. The Court held that this was not taking the defendant’s evidence at its highest, as his evidence was unequivocal: he was not confused or being given inconsistent signals, as he testified the plaintiff indicated she was going right, not left.

Justice Blair cited Beaumont v. Ruddy , [1932] O.R. 441 (C.A.) for the proposition that generally speaking, where one car runs into another from behind, the fault lies with the driver of the rear car, and he must satisfy the Court that the collision did not occur as a result of his negligence. Since the trial judge did not make factual findings to resolve the conflicting testimony between the parties, it could not be said one way or another whether Beaumont had been satisfied. Justice Blair held:

31 In addition, the trial judge's approach was wrong in law, in my view. The common law principle enunciated in Beaumont v. Ruddy does not prescribe that a following driver is always at fault if he or she runs into another from behind. It simply states that generally speaking this will be the case, and shifts the onus to the following driver to show otherwise. There is no principle of law of which I am aware that automatically fixes a following driver who runs into another vehicle from the rear with liability "no matter what [the lead driver] chooses to do, within [his or] her own lane." Subject to the law's general bias in favour of fault on the part of the following driver and the "following too closely" jurisprudence, liability - as in any negligence case - depends upon whether the following driver was acting reasonably in the circumstances and, conversely, whether the lead driver was as well.

The Court allowed the appeal and ordered a new trial.

- Tara Pollitt

Distracted Driving Legislation Comes into Effect October 26, 2009

Bill 118, which amends the Highway Traffic Act to prohibit the use of handheld electronic devices while driving, comes into effect October 26, 2009.

Some highlights of the new legislation:

• drivers cannot use handheld devices while driving. This includes cell phones as well as handheld entertainment devices such as iPods, Gameboys and so forth;
• drivers may use devices such as cell phones in hands-free mode;
• drivers cannot view display screens on devices unrelated to driving, such as DVDs or laptops. This does not include GPS systems;
• the use of such devices while off the roadway, not in motion and not impeding traffic is permitted;
• calls to 911 are exempted.

Fines for contravening these provisions range from $60 to $500. Police can also charge drivers with careless driving which has more serious penalties, including imprisonment.