ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘Gaebel v. Lipka’

BC Court of Appeal – Losing Control on Shoulder of Road is Prima Facie Negligence

December 13th, 2017

Reasons for judgement were released today by the BC Court of Appeal overturning a trial judgement as being ‘clearly wrong’ and finding that when a motorist loses control on the shoulder of a road a prima facie case of negligence is made out.

In today’s case (Gaebel v. Lipka) the Plaintiff was a passenger in a vehicle operated by the Defendant.  The Defendant drifted on to the shoulder of the road then “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 claim was dismissed at trial with a finding the Defendant was not negligent.  The Court of Appeal overturned this finding and provided the following reasons:

[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.


Trial Venue Not Changed Due to “Overwhelming Cost of Expert Evidence”

March 9th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a change of venue application due to the ‘overwhelming cost of expert evidence‘.

In today’s case (Gaebel v. Lipka) the Plaintiff was injured in a 2011 collision which occurred in Powell River.  Both the Plaintiff, Defendant and some lay witnesses resided in Powell River.  The trial was scheduled to take place in Vancouver where the majority of expert witnesses involved in the case practiced.  The Defendant argued the trial ought to be moved to Powell River given the location of the majority of lay witnesses.  Master Muir dismissed the application citing a concern of the cost of producing experts to attend the out of town location.  In dismissing the application the Court provided the following reasons:

[9]             As I said, the plaintiff and defendants reside in Powell River. One of the employers resides in Powell River.

[10]         However, there are other witnesses that reside in Nanaimo, Campbell River, Langley, and then there is the question, of course, of experts. The majority of the experts, if not all of them, will be attending from Vancouver…

[14]         The costs of having experts travel to give evidence, even if they are willing or available to do so, is considerably greater than that of lay witnesses.

[15]         There was an issue as to the appropriateness of a jury trial given that the plaintiff resides in Powell River. The plaintiff was concerned that he would not be able to get a jury that was unfamiliar and unbiased with regard to the events in issue.

[16]         The defendants take that by the horns and advise that they will not have this matter tried as a jury trial if it proceeds in Powell River. So that is no longer a consideration.

[17]         The primary position advanced by the defendants was that the costs of the lay witnesses and the convenience to the plaintiff’s employer and others coming from Powell River overwhelmingly overbalance the plaintiff’s right to have the trial in Vancouver.

[18]         The plaintiff disputed that and, as I noted, provided evidence of where other witnesses actually reside. It appears that there are a number of witnesses who, although they may work occasionally in Powell River, do not reside there.

[19]         Given the overwhelming cost of expert evidence, it is my view that the test has not been met and the application is therefore denied.