CASE LAW - Gaebel v Lipka

Gordon Lipka was driving his vehicle on the Stillwater Main forest service road near Powell River, B.C. As he neared the intersection of Highway 101, Mr. Lipka drove onto the shoulder of the road and lost control of his vehicle. The vehicle travelled up an embankment, became airbourne and rolled before landing. Brad Gaebel, a passenger in the vehicle injured his right shoulder and collarbone in the incident.

In the initial Supreme Court trial, Madam Justice Sharma found:

In my view this situation was a true accident where no one can be held at fault for the vehicle rolling over. I am not satisfied on a balance of probabilities that Mr. Lipka's speed was unsafe for the road conditions on that day. I find Mr. Lipka met the standard of care, and accordingly there was no negligence. He is not liable for any damages.

The decision was appealed and heard by Justices Goepel, Groberman and Stromberg-Stein. They found:

[28] The uncontradicted evidence establishes that Mr. Lipka lost control of the vehicle when he caused it to encroach onto the shoulder of the road. Mr. Lipka was fully familiar with the road. He drove it on a daily basis. He was aware of the soft shoulder. His practice was to move to the right while approaching the curve where the accident occurred. He had, however, never previously driven onto the shoulder or lost control of his vehicle. He attributed his loss of control to driving onto the shoulder.

[29] In my view driving onto the shoulder and losing control of the vehicle gives rise to a prima facie inference of negligence. On this evidence, the only reasonable inference that can be drawn was that Mr. Lipka drove on the shoulder either because of a lack of attention or because he approached the curve too fast, or both.

[30] Once a prima facie case of negligence is proven, the onus shifts to the defendant to rebut the inference through the defence of explanation. A defence of explanation is an explanation of how the accident may have happened without the defendant’s negligence: Singleton v. Morris, 2010 BCCA 48 at para. 38.

[31] In this case, Mr. Lipka has advanced no explanation as to how the accident may have occurred absent negligence on his part. The lack of an explanation distinguishes this case from cases such as Singleton and Nason, in which the trial judges found the prima facie case of negligence had been rebutted.

[32] In the result, I find the respondents are wholly liable for Mr. Gaebel’s damages.

The Motor Vehicle Act requires a driver to operate their on the roadway, not the shoulder:

Driver on right

150 (1) The driver of a vehicle must confine the course of the vehicle to the right hand half of the roadway if the roadway is of sufficient width and it is practicable to do so, except...