In Gaebel v. Lipka, the Plaintiff was a passenger in a motor vehicle where the driver lost control of the vehicle, and eventually crashed, causing injury to the Plaintiff.
The Plaintiff commenced formal legal proceedings. At trial, the Justice ruled that the Defendant did not drive onto the shoulder of the road, and did not breach the requisite standard of care when he lost control of the vehicle. Consequently, the Plaintiff’s claim was dismissed. The trial Justice also ruled that the Plaintiff did not prove that the accident caused any injury to him. The Plaintiff appealed.
Counsel for the Plaintiff argued that the trial Justice’s ruling that the Defendant did not drive onto the shoulder of the road was a palpable and overriding error. Further, it was argued that the trial Justice committed an error of law by misapprehending the principles of the law of negligence.
The Court of Appeal found that the ruling that the Defendant did not drive onto the shoulder of the road was clearly an error, and was contrary to the evidence presented at trial.
The Court of Appeal also ruled that the Defendant had not advanced any explanation as to how the accident may have occurred absent negligence on his part, and subsequently was deemed liable for the accident.
The Court of Appeal allowed the appeal, set aside the original dismissal of the Plaintiff’s claim, found the Defendant liable for the accident, and ordered a new trial with respect to the Plaintiff’s damages assessment.
 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
 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.
 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.
 In the result, I find the respondents are wholly liable for Mr. Gaebel’s damages.