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BC Court of Appeal finds that losing control on a shoulder is prima facie negligence.

If someone drifts onto a soft shoulder and loses control of the vehicle, are they at fault? What is the standard of care? Is losing control on a gravelly shoulder a “true accident” in which no one can be blamed?

A recent decision of the BC Supreme Court was successfully appealed before the BC Court of Appeal. Gaebel v Lipka, 2017 BCCA 432 involved a single vehicle crash. The plaintiff was riding passenger with the defendant driver, Mr. Lipka, on a logging road. Mr. Lipka was familiar with the road and had driven it many times. As the vehicle approached an intersection, Mr. Lipka lost control, the vehicle fishtailed, crossed the road to the opposite side, travelled up onto an embankment, launched into the air and rolled over three times before landing.  The trial judge’s view was that this was a true accident and no one could be held at fault for the vehicle rolling over. She found that Mr. Lipka met the standard of care, and accordingly there was no negligence and he was not liable for any damages.

The plaintiff successfully appealed the trial judge’s dismissal of his claim. On appeal, the Honourable Mr. Justice Goepel provided written reasons as follows:

[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.