June 24, 2021

The True Cost of Tailgating

Author: Michael Hodgins, Associate

Ah, summer. The sun is shining, birds are chirping, and pretty soon we will all be able to get together again. If you’re like me that means cottages, and those lovely drives along two-lane highways to get there. At least they should be lovely, but it always seems like there’s at least one person in more of a hurry to get to their destination than anyone else. And this person wants you to know it, by driving way too close to your vehicle’s bumper until they (hopefully) have room to pass. This person is the dreaded “tailgater”.

Look, there’s an age old debate between tailgaters and more cautious drivers, enough to sustain a thriving bumper sticker industry. As a personal injury lawyer, you can probably guess which camp I fall into. Rather than doing my best impression of my grandmother by lecturing the reader about the importance of getting to one’s destination in one piece, I’ll do what lawyers do best: summarize the law. In this case the law is pretty cut and dry: the at-fault driver in a rear-end collision is almost always the party doing the rear-ending.

Let’s start with legislation that anyone who drives should know about: The Fault Determination Rules under the Insurance Act.[1] These rules were created to develop standards that insurance companies across Ontario could use to allocate fault in common motor vehicle collisions. Since “rear enders” are the most common sort of collision there is (25% of all collisions in Canada in 2016), they are the first type of collision to be addressed in the fault determination rules. They’re also one of the most straightforward entries:

“..when automobile “A” is struck from the rear by automobile “B”, and both automobiles are travelling in the same direction      and in the same lane… If automobile “A” is stopped or is in forward motion, the driver of automobile “A” is not at fault and        the driver of automobile “B” is 100 per cent at fault for the incident.”[2]

That’s it. No debating, no negotiating. If you rear-end someone your insurance company deems you 100% at fault!

Now, before someone reading this article goes out and starts tapping the brakes the next time they are tailgated (it should go without saying that this is also a terrible idea), it is important to say that an insurance company’s fault determination and a Court’s fault determination are two different things. In Ontario courtrooms, the rear driver in a rear-end collision has something called the “burden of proof” placed on them. This means that while they are presumed to be at fault, the rear driver can rebut this presumption by showing that the driver they hit was the negligent one.[3] This is tough to do however, and would usually require unique circumstances that made it impossible for a rear driver who was driving safely to react.

The most rewarding part of my job is getting compensation and treatment for my clients who were hurt through no fault of their own—most injured people who have been in a rear-end collision fall into this category. But believe me, I’d rather they never have been rear-ended at all.  My hope is that whoever reads this drives a little slower and follows a little further this summer when they’re in a hurry. If you don’t do it for the people you could hurt in an easily avoidable accident, do it for your wallet, because both the courts and the insurance companies will make sure you pay for tailgating.

If you have questions or comments about this post, contact Michael Hodgins at Legate Personal Injury Lawyers: mhodgins@legate.ca

[1] R.R.O. 1990, Reg. 668

[2] Sections 6(1) & 6(2)

[3] Rahimi et al. v Hatami et al., 2015 ONSC 4266 (CanLII) at para 14