September 22, 2018 by Greg Meckbach
The Supreme Court of Canada will not hear an appeal from a motorist found to be liable for a single-vehicle collision.
Brad Gaebel was a passenger in a vehicle driven by Gordon Lipka, who lost control after moving to the right shoulder on a narrow logging road.
The resulting crash injured Gaebel, who sued Lipka. A trial judge (Neena Sharma of the B.C. Supreme Court) initially ruled in 2016 that the collision was a “true accident” and therefore Lipka is not liable. That ruling was reversed on appeal. Lipka applied for leave to appeal but the Supreme Court of Canada announced Sept. 20, 2018 it had dismissed Lipka’s application.
As it stands, a new trial must be held in order to determine how much money Lipka must pay Gaebel.
In 2011, Lipka and Gaebel were co-workers. Lipka was driving himself and Gaebel when Lipka drove his Kia Sorento on to the shoulder of the logging road. The vehicle fishtailed, crossed the road, travelled up an embankment, launched into the air and rolled before landing.
During the trial in the lawsuit, Lipka told the court he was approaching a curve and moved to the right in case there was oncoming traffic.
In its unanimous ruling in Gaebel v. Lipka, released Dec. 13, 2017, the B.C. Court of Appeal ruled that the trial judge erred in failing to “determine, based on the facts, whether an inference of negligence should be drawn” from the manner in which Lipka drove his vehicle.
The appeal court cited Fontaine v. British Columbia (Official Administrator), released in 1998 by the Supreme Court of Canada. In Fontaine, the court ruled on the doctrine of res ipsa loquitur, a Latin phrase meaning “the thing speaks for itself.”
In a negligence lawsuit, the court must consider whether “the accident would ordinarily occur in the absence of negligence,” Justice Jack Major wrote for the Supreme Court of Canada in Fontaine. That case arose after the remains of Edwin Fontaine and Larry Loewen – along with Loewen’s vehicle – were found in January, 1991 in a creek bed, two months after they disappeared on a hunting trip near Hope, B.C. Fontaine’s widow had sued Loewen’s estate. The plaintiff argued the circumstances of the accident showed Loewen had driven in a negligent manner.
In Gaebel, Justice Richard Goepel of the B.C. Court of Appeal wrote that if a motorist loses control after driving onto the shoulder, this “gives rise to a prima facie inference of negligence.” Concurring were Justices Harvey Groberman and Sunni Stromberg-Stein.
“Once a prima facie case of negligence is proven, the onus shifts to the defendant to rebut the inference through the defence of explanation,” Goepel wrote. “A defence of explanation is an explanation of how the accident may have happened without the defendant’s negligence.”