This injury claimant was a passenger in a single vehicle accident. The car accident occurred on Stillwater Main Road, a gravel logging road which intersects Highway 101 near Powell River, British Columbia. As the claimant’s vehicle approached the intersection, the driver lost control, the vehicle fishtailed, went up onto an embankment, launched into the air and rolled over three times before landing.
The trial judge found that the driver did not drive onto the shoulder of the road and was therefore not negligent. The lawsuit was dismissed. The Court of Appeal overturned the trial judge’s and found that the driver was 100% at fault for the accident(Gaebel v. Lipka,2017 BCCA 432). Importantly the Court of Appeal has set out the proper test for this type of single motor vehicle accident:
…The test arising from Fontaine was set out by this Court in Nason v. Nunes, 2008 BCCA 203:
 … Instead, the Court provided a simpler formulation of the correct approach that refers only to the end of the trial: the trier of fact should, Major J. said, weigh all the evidence, both direct and circumstantial, to determine whether the plaintiff has established a prima facie case. If he has, the defendant must “negate” that evidence, failing which the plaintiff will succeed.
In this case the trial judge was wrong because there was uncontradicted evidence establishing that the driver lost control of the vehicle when he caused it to encroach onto the shoulder of the road. Driving onto the shoulder and losing control of the vehicle gives rise to a prima facie inference of negligence. Again, on the evidence in this case there was evidence of negligence because the defendant drove on the shoulder of the road.
Once a prima facie case of negligence is proven, the onus shifts to the defendant to rebut the inference through the defence of explanation. In this case the driver advanced no explanation as to how the accident may have occurred absent negligence on his part.
As a result the Court of Appeal found the driver wholly liable for the claimant’s damages and a new trial was ordered.