Over the Christmas holidays I, like many Ontarians, had to drive through some inclement weather on a one-lane highway. Naturally, I lowered my speed in order to make sure I could navigate curves and stop safely. 

Unfortunately, this driving style led me to experience something else that too many Ontarians are familiar with– being tailgated. This was particularly uncomfortable because, being on a one-lane highway, I had no ability to move over. 

When I shared my story with a friend who usually agrees with me on the importance of safe driving habits, I was a bit shocked to hear her say that she brakes for tailgaters! “Hey, if we get in an accident, it’s their fault!” she remarked. 

The purpose of this post is not to defend people who tailgate. If you’re reading this and you engage in that behaviour, stop. It’s dangerous and illegal. Rather, this post is for people like my friend, who (rightly) become upset with people who tailgate, but (wrongly) make a bad situation worse by braking suddenly in response. 

My friend’s belief that even if she stopped suddenly, the tailgating driver would automatically be at fault in a rear-end collision is not an uncommon one. The thriving bumper sticker industry is evidence enough. 

It’s also true that insurance companies in Ontario hold the driver at the end of a rear-end collision 100% liable under the fault determination rules. However, when it comes to assessing liability in the legal sense, things aren’t necessarily that simple. 

This is because of the concept of contributory negligence. Very broadly speaking, contributory negligence means that if someone else’s negligence causes you to suffer harm (as is the case when you are rear-ended by a tailgater and suffer injuries), the amount they would have otherwise had to pay to compensate you for this harm is reduced if it can be proven that your own negligent actions caused or contributed to your injuries as well. 

The law in Ontario is fairly clear that when a rear-end collision occurs, the presumption is that the person doing the rear-ending is presumed to be responsible for causing the accident unless they can prove otherwise. The onus, therefore, is on the rear-ending driver to prove that the accident did not occur as a result of their negligence. While it’s impossible to speak to any and every situation that could occur on the roadway, it’s difficult to imagine a tailgating driver that gets into a rear-end collision being able to overcome this onus. 

However, when it comes to arguing contributory negligence, the tailgating driver that caused the rear-end collision doesn’t need to prove that their negligent actions caused the accident, they only need to prove that the other driver’s conduct also caused or contributed to it. This is a high bar to meet due to the presumption of liability, but not an impossible one. Braking suddenly in the roadway, which is also dangerous and illegal, could very easily be found to meet this threshold. 

Nothing written above should override the most important reason not to brake for tailgaters or otherwise “mess with” aggressive drivers: motor vehicle accidents can be catastrophic, and any activity that makes such an accident more likely should be avoided at all costs. It is for this reason as well that tailgating and other types of aggressive driving are wrong to being with.  

Motor vehicle accidents all too often cause losses that money can never truly compensate for. The loss of a favourite pastime,  the sudden reality of a life in constant pain, and in the worst cases, the loss of life. These are all things I, unfortunately, see all too often. However, until medical and automobile technology reaches a point where such losses do not happen, the best remedy society can offer is money. And being found contributorily negligent for a motor vehicle accident reduces what you otherwise would have recovered, sometimes substantially. 

If you or a loved one is involved in a motor vehicle accident, you should contact a personal injury lawyer immediately to protect your rights. However, with all due respect to the bumper sticker industry, it is my sincere hope that you aren’t involved in an accident as a result of braking for tailgaters!

Contact Millars Law today when you Can’t Afford to Lose.  (519) 657-1LAW or Info@millarslaw.com 


By: Michael Hodgins