IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT:  These are my reasons for judgment in the matter of Athena Hayward versus Sukhjit Singh Gill, file number 22818.

[2]           On Sunday, May 8, 2016, it was Mother's Day.  Unfortunately, for these parties it was also the day they were involved in a motor vehicle accident on Highway 1, east of Bradner Road in Abbotsford, B.C.  Ms. Hayward ultimately rear‑ended Mr. Gill's vehicle but she claims that Mr. Gill slammed on his brakes so as to cause the accident.  She asserts that Mr. Gill was behaving aggressively and further, he purposefully caused the accident.  Ms. Hayward is asking the court to make a factual finding that Mr. Gill was at fault and her Notice of Claim also seeks reimbursement of her collision deductible.

[3]           Conversely, Mr. Gill seeks a dismissal of Ms. Hayward's claim.  He asserts that she made an unsafe lane change, causing him to take evasive action.  His vehicle ended up in front of Ms. Hayward's vehicle and he was required to brake because of traffic congestion.  Mr. Gill alleges that Ms. Hayward rear-ended him and she was negligent in doing so.

[4]           On May 8th, 2016, Ms. Hayward was driving her 2014 Volkswagen Passat westbound on Highway 1 in Abbotsford, B.C.  As I indicated earlier, May 8th was Mothers' Day, a Sunday, and traffic was stop and go along the highway.  The traffic on the left passing lane was proceeding more quickly than the traffic in the right lane so Ms. Hayward decided to change from the right lane to the left lane.  She says she turned on her left signal, did a shoulder check and she felt it was safe to proceed into the left lane of travel.  As Ms. Hayward did her shoulder check, she did see Mr. Gill's blue Honda a full car length behind her in the left lane.  Ms. Hayward did, in fact, complete her lane change but she then heard an engine revving and she saw Mr. Gill's Honda on the paved shoulder right beside her.

[5]           According to Ms. Hayward, Mr. Gill accelerated his vehicle passed her vehicle and he then turned back in front of her and slammed on his brakes.  He came to a full stop on the highway.  Ms. Hayward swerved to the right to attempt to avoid a collision but her front bumper on the driver's side collided with Mr. Gill's rear bumper on the passenger side.  There are photographs of the abrasions to the front of Ms. Hayward's vehicle on the corner of the driver's side and there is a photograph of the abrasion to the rear of Mr. Gill's vehicle on the corner of the passenger side.  Ms. Hayward estimated she was travelling at a speed of 20 to 30 kilometres per hour at the time of the collision.

[6]           Following this relatively minor collision, Mr. Gill got out of his Honda and took a photograph of Ms. Hayward's licence plate.  She asked, "What the hell are you doing?"  He replied by saying, "I got you bitch, see you in court."  Ms. Hayward felt intimidated.  Ms. Hayward claims that there was no opportunity for the parties to exchange driver's licences because Mr. Gill took off.  She was unable to write down his licence plate number.  As far as Ms. Hayward was concerned, this was a road rage incident, not a rear-ender.  Ms. Hayward initially called the Abbotsford police.

[7]           Ultimately, ICBC investigated the matter and spoke to a witness in a vehicle behind Ms. Hayward.  I did not hear from this witness so I will not be relying on anything observed by that witness.  ICBC eventually found Ms. Hayward to be 100 percent at fault for the accident but their finding is irrelevant to my decision.

[8]           On May 8th, 2016, Mr. Gill was coming home from work in his blue Honda, travelling westbound on Highway 1 in the left lane.  His work at that time was as a mechanic but he had his Class 1 truck driver's licence.  The traffic that day was stop and go between 232nd Street and 264th Street.

[9]           Mr. Gill saw Ms. Hayward's Passat beside him in the right lane.  As he was in the process of passing by her vehicle, she merged into his lane and he honked his horn.  He did not see her signalling.  Ms. Hayward did not acknowledge him and Mr. Gill believed Ms. Hayward had not seen his Honda in the left lane.  To avoid a collision, Mr. Gill says he drove onto the paved shoulder maintaining his speed.  Mr. Gill then pulled his vehicle from the shoulder into the left lane in front of Ms. Hayward.  Shortly thereafter Mr. Gill saw brake lights in front of him so he applied his brakes, as necessary.  From his rearview mirror, Mr. Gill saw Ms. Hayward acting hysterically and he also saw her signalling to go back into the right lane.  He was applying his brakes to keep a safe distance from the traffic in front, and Ms. Hayward hit him from behind as she was merging into the right lane.  Her front bumper on the driver's side struck his rear bumper on the passenger side.

[10]        Mr. Gill saw Ms. Hayward get out of her vehicle and speak to someone in a vehicle behind her and he took a picture of that scene.  Ms. Hayward then approached Mr. Gill and she was "hysterical" according to Mr. Gill.  He did tell her he would see her in court.  Mr. Gill did not exchange particulars with Ms. Hayward because she was aggressive and he said he was in pain and did not want to engage her.

[11]        Sections 162(1) and 144 of the Motor Vehicle Act [RSBC1996] Chapter 318 apply to this case.  Section 162(1) states:

[12]        I am also guided by case authority such as Pryndik v. Manju, 2001 BCSC 502.  It is the claimant here who has the onus to establish that the defendant was negligent and that the defendant's negligence caused the collision.  An operator of a motor vehicle following other vehicles should keep his vehicle under sufficient control at all times to deal with an emergency such as the sudden stopping of a vehicle ahead and the telescope effect that results.  The Pryndik case at paragraph 22 makes the point that a vehicle stopping quickly or even abruptly in circumstances where traffic is heavy and moving in a “stop and go” pattern is not an unexpected event.

[13]        I am also aware of the principle that when one vehicle rear-ends another, the onus is on the driver of the rear-ending vehicle to demonstrate the absence of negligence (see Wallman v. John Doe, 2014 BCSC 79 at para. 409).  This is because the following driver owes a duty to drive at a distance from the leading vehicle that allows reasonably for the speed, the traffic and the road conditions.

[14]        Notwithstanding these pronouncements, I can certainly conceive of very rare situations where the rear driver may not be entirely at fault for a rear-end collision.  For example, if a front driver slams on his brakes on an uncongested highway with proven intent to startle the driver behind him, the rear driver may not be entirely at fault.  However, in the case at bar even Ms. Hayward concedes that the highway traffic was congested on the day in question.

[15]        I have borne in mind all the evidence in this case and the applicable legal principles.  The onus here is on Ms. Hayward to establish that Mr. Gill was negligent.  Also, because Ms. Hayward was in the rear-ending vehicle, she must demonstrate an absence of negligence on her part.

[16]        In many respects, this case is a credibility contest.  Ms. Hayward effectively says that Mr. Gill cut her off and slammed on his brakes and she did everything reasonably possible to avoid a collision.  If I totally accepted her evidence this may, indeed, be one of those rare cases where the front driver has some fault.

[17]        However, Mr. Gill asserts that Ms. Hayward, in fact, made an unsafe lane change, and to avoid being sideswiped he went onto the shoulder and then pulled up in front of Ms. Hayward.  He then braked safely in accordance with the traffic congestion and Ms. Hayward rear-ended him as she made yet another lane change.

[18]        No independent witnesses testified in this case.  The photographs do not assist me because the damage could be explained by either Ms. Hayward's or Mr. Gill's account of the accident.  The damage to the respective corners of the vehicles could be explained by Ms. Hayward avoiding collision with a fully stopped vehicle, or by Ms. Hayward carelessly merging right during a lane change.

[19]        Both Ms. Hayward and Mr. Gill gave their evidence in a forthright, confident manner.  I was puzzled by Ms. Hayward's testimony when she asserted that Mr. Gill "took off" after the accident and that she was intimidated.  The photograph taken by Mr. Gill clearly illustrates that he did not immediately take off and that Ms. Hayward was attempting to collect evidence from another witness.

[20]        However, I also found one aspect of Mr. Gill's account highly peculiar.  He drove into the shoulder to take evasive action, yet he then maintained speed and pulled up immediately in front of Ms. Hayward.  He says he was prudently trying to return from the shoulder but Ms. Hayward took this action to be aggressive.

[21]        Based on the evidence presented, it is difficult, if not impossible, to reconcile the different accounts of this accident.  When I weigh the evidence in its entirety, I am not satisfied on a balance of probabilities that Ms. Hayward has proven that Mr. Gill acted negligently.

[22]        Further, Ms. Hayward has not demonstrated on a balance of probabilities that she was not negligent when she rear-ended Mr. Gill's vehicle.

[23]        Based on these reasons, I must dismiss the Notice of Claim.

[24]        I note this trial was adjourned four times, once by consent, once at the request of the claimant and twice at the request of the defendant.  In these unusual circumstances, I am ordering that each party bear their own costs.