Defence + Indemnity: August 2018 - Liability Issues: Woitas v. Tremblay

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LIABILITY ISSUES

In a chain reaction series of rear end accidents, following vehicles are presumed to be negligent for rear end collisions and the fact that a driver has to stop for an accident in front of him will be no defence.  Drivers of vehicles which manage to stop without collision will not be negligent.

Woitas v. Tremblay, 2018 ABQB 588, per Wachowich, Master [4287]

FACTS AND ISSUES:

On January 26, 2012, two rear-end accidents occurred on Highway 2 southbound, north of Leduc, Alberta. It was rush hour and traffic was backed up in the right lane of three southbound lanes, because of traffic in that lane waiting to exit to the right for the Nisku turnoff. Traffic in the other lanes were proceeding at slower than highway speed as drivers changed lanes, jockeying to make their way through the traffic.

In Accident 1, Tremblay was forced to stop and managed to do so without impacting the vehicle in front of her. Unfortunately, the Defendant Bevans following her was unable to stop in time and rear ended the Tremblay vehicle.

In Accident 2 the Defendant Dechant stopped suddenly in the left lane to avoid Accident 1 in front of him, with success. Following Dechant was Edmundson driving a prison van taking prisoners to Red Deer. Edmundson was initially in the middle lane and claimed that he was forced to change into the left lane to avoid collision with a black truck in front of him. He checked his side mirrors to ensure he would not be cutting off a following driver in the left lane and made his lane change. When he looked in front of him again the black truck was in front of him again and had slammed on its brakes suddenly. Edmundson had to choose between rear ending that vehicle and driving into the ditch. He chose the former and collided with the rear of the Dechant vehicle, injuring the passenger Plaintiff Woitas.

Dechant argued that the accident was caused by the negligence of Tremblay and Bevans (involved in Accident 1) and Dechant. He argued that Tremblay had braked too quickly, causing Accident 1 which, in turn caused Accident 2 when Dechant “cut off” Edmundson. Edmundson also argued that he had reacted in the agony of the moment.
 
Tremblay, Bevans and Dechant applied for summary dismissal of the claims against them. Woitas claimed to have an expert accident reconstructionist’s report to assist her position but did not tender it arguing that trial expert reports should only become part of the record by consent or approval of the Court.

HELD: For the Defendants Tremblay, Bevans and Dechant; claims against them summarily dismissed.

The Court relied on the modified test for summary judgment whereby it is no longer required that there is a triable issue. The issue is whether or not the case can be decided on the basis of the evidence before the Court on a summary judgment application:

[29]      Commenting on the Hryniak case [Hryniak v Mauldin, 2014 SCC 7 (CanLII)], our Court of Appeal stated in WP v Alberta, 2014 ABCA 404 (CanLII), [2014] AJ No. 1320 at para 26:
 
Summary judgment is therefore no longer to be denied solely on the basis that the evidence discloses a triable issue. The question is whether there is in fact any issue of “merit” that genuinely requires a trial, or conversely whether the claim or defence is so compelling that the likelihood it will succeed is very high such that it should be determined summarily.
 
[30]      As our Court of Appeal stated in the 2015 decision, 776826 Alberta Ltd v Ostrowercha, 2015 ABCA 49 (CanLII), [2015] AJ No 118 at para 11:
 
Stated another way, in order for the non-moving party's case to have merit, there must be a genuine issue of a potentially decisive material fact in the case which cannot be summarily found against the non-moving party on the record revealed by the “fair and just process”. The mere assertion of a position by the non-moving party in a pleading or otherwise, or the mere hope of the non-moving party that something will turn up at a trial, does not suffice. The key is whether the circumstances require a viva voce evidence in order to properly resolve the case: see Canada v Lameman, 2008 SCC 14 (CanLII) at paras 10 to 11, 2008 SCC 14 (CanLII), [2008] 1 SCR 372.
 
The Court reviewed the law with respect to rear-end collisions. Drivers are to maintain a reasonable distance behind traffic in front of them:

[15]      As can be seen from the legislation noted, it is a requirement of all drivers that they maintain a reasonable and prudent distance behind vehicles they are following.

[16]      If a driver collides with another vehicle from behind (a “rear-ender”) then the onus is on the following driver to prove that the collision did not occur as a result of his/her negligence. (Moseley v Spray Lakes Sawmills (1980) Ltd, 1997 CanLll 14730 (AB QB) at para 55).

The Court held that the evidence was such that the case against Tremblay, Bevans and Dechant could be summarily resolved in their favour.
  • Edmundson was negligent for driving too closely or at too great a speed to stop in light of traffic conditions in front of him which should have been obvious to him but Tremblay, Bevans and Dechant were exonorated:
[17]      Evidently Sheriff Edmundson was aware of the traffic conditions and the potential for slowing/stopping vehicles. A vehicle stopping quickly or even abruptly in stop and go traffic is not “an unexpected event, nor is it an event that occurs without justification” (Pryndik v Manju, 2001 BSSC 502 at para 22).
 
. . .
 
[19]      The Respondent’s position seems to be that Tremblay should not have braked heavily. But Tremblay obviously wished to avoid colliding with the vehicle that stopped suddenly in front of her. She discharged her duty of care by driving a proper distance such that she was able to stop without impacting any other vehicle.

[20]      Similarly, Dechant, was able to avoid colliding with the Bevans vehicle. He was keeping a proper lookout and was able to safely stop two metres from the Bevans vehicle.
 
. . .
 
[22]      Similarly, in the within matter, the Dechant vehicle was able to stop behind the Bevans vehicle without incident. The fact that Mr. Dechant was able to stop his car without issue, disposes of the issue. It is not relevant whether Bevans was involved in a collision or whether she was stopped for traffic. There is no liability on the part of Bevans with respect to the Incident.
 
. . .
 
[31]      Review of the evidence supports the conclusion that the rear ending of the Tremblay vehicle by the Bevans vehicle is separate and distinct from accident #2 such that no actions or inactions of Bevans can be found to have caused or contributed to the second accident between the Edmundson and Dechant vehicles which resulted in the injuries suffered by Woitas.
 
[32]      Equally, if Dechant was able to stop, the Respondent should have been able to stop and I do not see any conflicting evidence of merit. I am satisfied I can make a fair and just decision on the record before me.
  • The Court rejected Edmundson’s argument that the agony of collision doctrine applied to him:
[35]      None of these cases make this doctrine applicable to this case. They are cases where the Plaintiff’s vehicles could not reasonably have expected the vehicle in front to brake quickly and the vehicle in front was not driving with due care and attention. I refer back to the Pryndik v Manju, 2001 BSSC 502 decision.
 
[36]      Mr. Edmundson failed to use proper care and attention and carefully observe the traffic around him. He followed the Defendant Dechant too closely given the traffic conditions. The Defendant Dechant deposed that he estimated he had come to a complete stop for 3-5 seconds before Edmundson rear-ended him. Accident #2 occurred solely due to the negligence of Edmundson.
 
[37]      The Defendants, Tremblay and Dechant, had to stop to avoid colliding with the vehicles stopped in front of them. They properly discharged their duty of care by driving at a proper distance such that they were able to stop without impacting that vehicle. The driving conditions were difficult and there was no negligence on the part of either Tremblay or Dechant, or in regard to this action, the Defendant Bevans. Each case depends on their facts and these facts do not support the application of the agony of the collision doctrine.
 
It was held that Woitas’ expert evidence could have gone in by affidavit but, in any event, could not assist the Court in light of the facts:

[41]      Witness’s expertise can be established by Affidavit. A questioning on the Affidavit or a countering expert Affidavit may indicate a trial is required as the case cannot be decided on the record before the Court. In this case, I have no evidence from any possible witnesses, including any experts. Further, I see nothing in the facts which could be assisted by expert evidence. Second, the law is clear that on a summary judgment application the parties have to put their best evidence on the record. The continuance of the action is at stake and has to be treated accordingly.

COMMENTARY:

This case is an excellent summary on the law of rear end collisions in general and of chain reaction rear end accidents in particular.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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