In rear-end collisions the trailing driver is not always liable; the Court is to consider the factual circumstances in each case: the speed of the trailing vehicle, the distance between the vehicles, the actions of the trailing driver before the emergency arose and that driver’s actions as the emergency arose.
Biggar v. Enns, 2017 BCSC 2290, per Sharma, J. 
I. FACTS AND ISSUES
The Plaintiff and Defendant were long-time friends on a two-week motorcycle trip through the Western United States in August 2014. They are both experienced motorcycle drivers. They had ridden together for five years. The Defendant “was the more ‘aggressive’ driver of the two, which is why he typically took the lead position”.
Both parties were driving the same model of motorcycle with a “linked braking” system. That meant that when the brakes on the right side handlebar were depressed, the majority of power was sent to the front brakes, but there was also some power sent to the back brakes. To engage only the back brakes, the driver would use the pedal brake.
The two parties were driving in a staggered position, “consistent with safe driving practices for motorcycles”. The Defendant was in the lead, in the “first position”, (closest to the centre line) while the Plaintiff was following in the “third position” (the right side of the lane, closest to the shoulder).
Both parties acknowledge that when driving a motorcycle a driver should “look where you are going” because the motorcycle will follow the driver’s gaze. Accordingly, when taking a curve, a driver has to look through “the curve where the driver wants to go”. It is also necessary to lean into the curve and apply throttle to maintain momentum and not tip over. Both parties acknowledge that if a driver engages the front brakes in a desire to stop quickly, he is likely to lose control of his motorcycle.
The accident occurred on August 17, 2014 at 1:30 PM on the right curve. To the left was a canyon with a guard rail on the shoulder and to the right was a mountain. The parties were travelling 30 meters apart in a staggered position on a uphill grade. The Plaintiff slowed to 25 mph approaching the curve and lost sight of the Defendant (who had disappeared around the mountain on the right side while making the curve).
Meanwhile, the Defendant had previously rounded a curve and hesitated to gaze out over the canyon (instead of looking ahead to where he was going). This caused him to briefly lose control of his motorcycle. It straightened up and crossed into the ongoing lane. He geared down and went back into the third position in his own lane, forgetting that the Plaintiff was coming up behind him. He re-crossed the center line to re-enter his own lane, and was facing the mountain (roughly perpendicular to the westbound lane of traffic) when the Plaintiff came up behind him in that lane.
As the Plaintiff came around the side of the mountain to see the Defendant perpendicular to the roadway in front of him (15 or 20 feet away) he would have crashed into the Defendant if he had not taken action. The Plaintiff could not swerve to the left because he did not know about oncoming traffic. In a “split second decision” the Plaintiff braked hard by engaging the right hand brake, which caused him to lose control of his motorcycle and slide across the ongoing lane onto the opposite shoulder, to be stopped by the railing with his bike on top of him. The Plaintiff was eventually air lifted to the hospital with serious orthopedic injuries.
The Defendant spoke briefly to a police officer but could not remember the content of the conversation. He also spoke to an officer about a week later in which he gave the officer a few details, only indicating that the Plaintiff had lost control of his bike and the road was very curvy. No police member spoke with the Plaintiff about the accident. The California Highway Patrol officers prepared a report which expressed the opinion that the Plaintiff was the cause of the accident. However, the report was not entered into evidence.
The Defendant admitted that he bore responsibility for the accident but argued that the Plaintiff was contributorily negligent. He relied on the California Highway Patrol report. He argued that the Plaintiff was driving in excessive speed relative to road traffic visibility and weather conditions such that as the Plaintiff approached the curve he was deprived of sufficient time or space to brake safely. The Defendant also argued that the Plaintiffs braking was unsafe, in that he engaged the front brakes and lost control of his motorcycle before impact.
The Plaintiff testified that he was driving at less than 35 mph as he entered the curve. Approaching the scene of the accident, there were no speed limit signs on the highway, except with respect to signs indicating a curve ahead. Those signs would indicate a speed for the upcoming curve.
The parties had reached an agreement on damages and the trial proceeded with respect to liability issues only.
II. HELD: For the Plaintiff; Defendant held 100% responsible.
1. The Court declined to consider the finding of the California Highway Patrol in its report, which had not been entered into evidence. The Court held that “it would be improper to consider the report’s findings in that context”. Even so, the Court held that it would likely have afforded the report little weight in any event.
2. The Court rejected the Defendant’s argument that the Plaintiff was speeding. The Court had no reason to disbelieve the Plaintiff’s evidence that he was driving at less than 30 mph as he entered the curve.
a. The Court found:
28 I reject those submissions. There is nothing inherent in the facts cited by the Defendant (that the men were experienced motorcyclists, that the trip was undertaken to enjoy motorcycle driving, and that a windy road is more fun to drive than a straight one) that makes it more likely than not that the parties would be untruthful or unreliable about their estimate of speed. In my view, their testimony confirmed the men are careful and cautious riders.
b. The Court rejected the evidence that the speed limit on that stretch of road was 35 mph, concluding that the speed limits posted on “curve ahead” signs referred only to the upcoming curve and not the highway in general.
3. The Court held that the Plaintiff had not been travelling too fast or following too closely:
30 It was a clear, sunny day and there was little traffic and no wildlife on the road. In other words, driving conditions were excellent. Both parties testified they were driving at about 35 mph prior to reaching the curve, and that they maintained a safe distance between them. I had no evidence to suggest the parties were driving too close together.
31 The Plaintiff testified that he slowed down to 25 mph before entering the curve, and as the laws of physics demand, he gently applied the throttle as he leaned into the curve. That does not mean he was accelerating through the curve; the throttle is necessary to make sure the bike does not fall over. There was no evidence, nor any reasonable inference I can draw from the evidence, that the Plaintiff’s speed was excessive or even unreasonable for the road conditions.
32 With respect, the Defendant’s argument is akin to saying the Plaintiff must have been travelling too fast because the accident happened. I do not agree nor is there legal support for that line of circular reasoning.
. . .
34 The Plaintiff’s position is consistent with the Defendant’s testimony. He testified that the Plaintiff is a safe driver and he did not think there was anything else the Plaintiff could have done that day to avoid his accident. The Defendant testified that he ought to have stayed on the shoulder and allowed the Plaintiff to pass before trying to regain his position on the highway. He also admitted he lost control of his motorcycle by gazing in\ to the canyon as he took the curve. He admitted he failed to look to the right when he took corrective action.
35 While those statements are not determinative, I do find they are helpful. Both men were experienced motorcyclists. The Defendant had driven on that road before and admitted to being the more “aggressive” driver. His observations do carry some weight.
36 For all those reasons, I conclude the Plaintiff was not driving too fast for the road conditions, nor that he was following too closely behind the Defendant.
4. The Court rejected the Defendant’s argument that the Plaintiff had braked unsafely:
33 The Defendant also submits that the Plaintiff’s braking behaviour was not safe, but I find that was based on a misunderstanding about how the brakes worked on the bikes. Unlike many bikes, engaging the right brakes did send some power to the back brakes. Therefore, the Plaintiff was not being careless or unsafe by applying only the front brakes to stop quickly.
5. The Defendant argued that in general, for rear-end collisions, liability is apportioned against the trailing vehicle, but the Court found that “liability in a rear-end collision case depends upon the factual circumstances”, noting that in such collision cases, the Court must consider four factors:
44 The Plaintiff refers to a number of cases that amplify the obvious point that as in all other cases, liability in a rear-end collision case depends upon the factual circumstances. Moreover, the basic enquiry into causation is whether the Plaintiff can prove on a balance of probabilities that “but for” the Defendant’s negligent conduct, the injury would not have occurred (Davies v. Elston, 2014 BCSC 2435 at para. 21).
45 In particular, the Plaintiff submits that the court has to determine whether, and to what extent, each person involved in the accident met his/her common law duties of care to the other users of the road. In coming to that determination, the court takes into account the rules of the road as set out in the Motor Vehicle Act. However, that does not eliminate the need to consider the reasonableness of each person’s actions. In other words the Motor Vehicle Act is not a complete legal framework for determining liability (Salaam v. Abramovic, 2010 BCCA 212 at paras. 18, 21 [as cited in Davies]).
46 For rear-end collisions, courts should look at four factors: (i) the speed of the rear vehicle; (ii) the distance between the two vehicles as they were driving along; (iii) the actions of the driver in the rear vehicle before the emergency arose, and; (iv) the actions of the driver as the emergency arose (Ayers v. Singh,  B.C.J. No. 350 (B.C.C.A) at para. 10).
6. The Court concluded that the Plaintiff had reacted to an unexpected hazard in a “agony of the moment” and, in that context, had acted appropriately to avoid the collision:
49 The Plaintiff says that in the face of an unexpected hazard and in the “agony of the moment”, he acted appropriately in order to avoid colliding with the Defendant. Courts have accepted that even if a driver applied less than a perfect effort to avoid an accident, when that is done in a manner to avoid a more serious collision, more latitude is given to the driver (Dewart v. Insurance Corp. of British Columbia, 2005 BCSC 1293 at paras. 57-58).
50 In my view, the phrase “agony of the moment” aptly describes the Plaintiff’s situation. The Plaintiff’s first reaction was to avoid colliding with the Defendant, or an oncoming vehicle. Therefore, it was a reasonable course of action for him to brake hard which caused his bike to fall and slide. The Defendant agreed that in order to avoid hitting him, the Plaintiff had to brake hard, and that made the Plaintiff’s bike fall.
51 In my view the evidence is clear that the Plaintiff was riding in a prudent and careful manner. There is no evidence that his speed was inappropriate for the conditions of the road or any other circumstance.
52 As noted earlier, I do not accept the Defendant’s argument that once he lost sight of the Defendant in front of him, the Plaintiff should have slowed down more than he did. Also, I have already concluded the Plaintiff was driving at an appropriate rate of speed, and that he had already slowed down.
53 Drivers are entitled to assume that other people will be driving in a prudent and safe manner. In Bern v. Jung, 2010 BCSC 730 the Plaintiff lost control of a bicycle because of a sudden and unexpected presence of the Defendant’s vehicle travelling in the wrong direction. The Court noted, at paras. 13-14, that the Plaintiff was forced to act quickly and apply his brakes quickly and that he should not be found contributorily negligent for doing so.
54 In this case the Plaintiff was entitled to assume that his friend had negotiated the curve safely; coming upon the Defendant situated in front of him and perpendicular to his line of traffic was unexpected and sudden. The Plaintiff cannot be blamed for doing what I find to be the only reasonable thing he could do to avoid a more serious accident: applying his brakes hard. I conclude it was the Defendant’s string of actions (looking to the canyon, and trying to get back in position instead of waiting on the shoulder) that caused the accident.
It is interesting to note that the Court referred to British Columbia case law with respect to liability. Since the accident occurred in California, the law of California should have been applied on the liability issues: Tolofson v. Jensen  3 S.C.R. 1022.