In Benavides v. Doe, the Plaintiff was injured on a bus when the bus driver stopped abruptly. The Plaintiff commenced an ICBC claim, and formal legal proceedings were eventually commenced. ICBC was named as a nominal Defendant, as the identity of the bus driver was unascertainable.

 

ICBC’S lawyer argued that the Plaintiff failed to prove that he was injured on the bus or, in the alternative, even if the Plaintiff did make out a prima facie case that he was injured, the evidence did not show that Translink breached the standard of care owed as a public carrier to the Plaintiff.

 

The Court would rule that the Plaintiff was in fact injured after the bus driver stopped abruptly at a bus stop. When this occurs, a reverse onus of proof applies, as it is then up to the Defendant to show that the injuries occurred without any negligence on the part of the bus driver. The standard of care owed to a bus passenger is what would be expected of a reasonably prudent bus driver in the circumstances. The standard is not one of perfection.

 

The Court, after hearing all the evidence, ruled that the bus driver was negligent by breaching the standard of care expected of a reasonably prudent driver. There was no evidence to indicate that the bus driver had to stop abruptly in order to avoid any unexpected hazards, and, contrary to policy, the driver did not decelerate smoothly as he approached the bus stop.

 

Although the identity of the bus driver was not ascertainable, the Court nevertheless found that Translink was vicariously liable for the injuries suffered by the Plaintiff.

 

[43]        The plaintiff has established that he was injured while a passenger on a bus operated by Translink, a public carrier.  Accordingly, he has made out a prima facie case of negligence, and the burden shifts to the defendants to show that Mr. Benavides’ injuries occurred without negligence on the part of Translink, or that it resulted from a cause for which the defendants are not responsible.

 

[47]        I find that the bus driver breached the standard of care expected of a reasonable and prudent bus driver by braking abruptly without warning his passengers and by braking suddenly in order to stop the bus at or beyond its regular stop at Fraser and 22nd Avenue.

 

[48]        A public carrier may be liable for the negligence of its drivers even where, as here, the plaintiff is unable to identify the bus driver. In Kean v. British Columbia Transit, 1998 CanLII 1817 (BC SC), 1998 CanLII 1817 (BCSC), the plaintiff was injured when a privately owned bus hired by BC Transit as a replacement for its own buses stopped suddenly. Because the plaintiff advised the driver at the time of the accident that she was not hurt, the bus driver was never identified.  The plaintiff claimed against BC Transit.  In Kean at para. 16, Mr. Justice Cohen held:

 

Regarding the issue of the vicarious liability, … I agree with plaintiff’s counsel that BC Transit is liable for the actions of the driver and the owner of the bus that was placed on the route by BC Transit to transport passengers from the bus stop in White Rock to the Broadway stop in Vancouver. If the plaintiff was able to establish the actual identity of the driver and the owner of the subject bus, then she would be able to succeed at trial against them, as well as BC Transit. The fact that the driver or the owner of the subject bus have not been identified does not, in my view, remove BC Transit’s liability to the plaintiff.

In Isaacs v. Coast Mountain Bus Company Ltd., the Plaintiff was injured after exiting a bus, and consequently brought an ICBC claim. The issue of quantum (amount for injuries) was agreed to between the parties, however the issue of liability was contested. The Defendant argued that they were not liable for the accident, but if the court found they were, then there should be some contributory negligence on the part of the Plaintiff. The bus had stopped approximately 12-14 inches from the curb, which is contrary to the bus company’s policy of stopping closer to the curb. The Court ruled that both the Plaintiff and Defendant bus driver were equally at fault for the accident.

 

[53] That the bus was parked further than ten inches from the curb is contrary to the defendants’ internal policy. In these circumstances it was a breach of the defendants’ standard of care owed to the plaintiff.

 

[54] A further breach of the defendant Mr. Payne is that, having stopped the bus further than ten inches from the curb, he did not warn Ms. Isaacs of the potential hazard being the excess distance. Although he considered a warning as he observed her moving quickly, he decided not to startle her. Given his observations, when he saw Ms. Isaacs exiting without use of the railing at more than 10 inches from the curb he should have provided a warning.

 

[58] Before exiting the bus and on observing the distance between the bottom step and the sidewalk, the courses of action open to Ms. Isaacs were to hold on to the railing and step down onto the pavement then walk to the sidewalk; to have requested assistance from Mr. Payne to exit safely; and to ask Mr. Payne to move the bus closer to the curb.

 

[62] Ms. Isaacs had the last clear chance to avoid the injuries which she suffered. She made a decision to jump, and in doing so breached her duty to herself.

In Tchir v. South Coast British Columbia Transportation Authority, the Plaintiff was injured as a passenger on a bus when the bus driver slammed on the brakes to avoid a vehicle that had stopped abruptly in front of it. The Plaintiff consequently brought an ICBC claim for damages for pain and suffering, loss of income, diminished earning capacity, special damages (out of pocket expenses), and the cost of future care. The Court would ultimately decide that both the bus driver and passenger were to blame. The Court discussed the reverse onus of proof that exists with respect to bus passenger claims.

 

[38] The standard of care owed by the Transit Defendants to Mrs. Tchir as a passenger is a high one. Also, once it is proven that a passenger is injured while riding on a public transit vehicle, a prima facie case of negligence is made out and the onus then shifts to the carrier to establish that the injuries suffered by the passenger occurred without fault on the carrier’s part.

 

[39] Those principles were summarized by McLachlin J. (as she then was) in Planidin v. Dykes, [1984] B.C.J. No. 907 (S.C.) [Planidin] at pages 3 and 4 as follows:

 

There is little dispute as to the legal principles applicable in this case. The standard of care imposed on a public character is a high one. This standard has been established in the Supreme Court of Canada decision Day v. Toronto Transportation Committee [1940] S.C.R. 433, 4 D.L.R. 485 . At page 439 of that report of that case Davis, J. said:

 

· ” The duty of the respondent to the appellant, its passenger, was to carry her safely as far as reasonable care and forethought could attain that end.”

 

· At page 441 Hudson, J. in an oft-quoted passage, stated:

 

· ” Although the carrier of passenger is not an insurer, yet if an accident occurs and the passenger is injured, there is a heavy burden on the defendant carrier to establish that he had used all due, proper and reasonable care and skill to avoid or prevent injury to the passenger. The care required is of a very high degree.”

 

These, and other cases, establish that once an accident occurs and a passenger is injured, a prima facie case in negligence is raised and the onus shifts to the public carrier to establish that the passenger’s injuries were occasioned without negligence on the company’s part.

In Hutchinson v. Dyck, the Plaintiff was injured as a passenger on a bus, and consequently brought an ICBC claim for damages for pain and suffering, as well as other forms of damages, such loss of housekeeping capacity, loss of income, diminished earning capacity, and the cost of future care. The Plaintiff alleged that the bus driver drove too quickly over a dip in the road, causing the Plaintiff to eject upwards, and then land hard back down on the seat. Liability was in dispute. The bus driver maintained he drove with reasonable care, however the Court rejected this notion, finding the bus driver wholly liable for the accident and resulting injuries of the Plaintiff.

 

[23] The defendant was an experienced bus driver. The plaintiff was entitled to expect that he would operate the bus in a safe, proper and prudent manner. The plaintiff is not expected to assume any risk associated with the operation of the bus which could not reasonably be anticipated by a passenger on the bus. The usual route along Grace Road would not cause a passenger to be thrown up off his seat in such a violent fashion.

 

[24] The defendant believed he was travelling 30 kilometres per hour when he hit the dip, but he made no note of that or other salient details on the incident form. The first time his estimate of 30 kilometres per hour was recorded came at his examination for discovery. This was an important detail which should have been noted on the incident form. The defendant was aware someone had been injured after he hit the dip in the road. The ambulance attended and took the plaintiff away. It was not a trivial matter. The defendant’s recollection of his speed well after the incident is not credible.

 

[25] In addition, the defendant agreed he noted on the incident report form that he knew there was a bump in the road but could not see how deep it was due to the dark and rain prevailing at the time. In other words, he saw it but did not approach it in such a fashion as to judge it properly. The defendant’s recollection of the conditions as dark and rainy are at odds with photographs taken by his supervisor shortly after the incident was called in. While it would obviously be more light out as the morning progressed, the photographs do not depict a roadway soaked with heavy rain, further calling into question the defendant’s recollection of how the accident occurred.

 

[26] In all the circumstances, I find the defendant was travelling faster than he thought on a stretch of road he knew contained a dip. He was going too fast to fully appreciate how significant a dip it was and too fast to take evasive action and brake to minimize the impact once he saw the dip. On balance I am not satisfied the defendants have shown the driver conducted himself in a reasonable and careful manner consistent with the high duty of care imposed on those engaged in public transit and I find the defendants negligent.

In Bideci v. Neuhold, the Plaintiff was a 93 year old man who was injured as he was in the process of attempting to exit a bus. The bus had come to a stop, yet pulled away before the Plaintiff could properly exit, causing the Plaintiff to fall and injure himself. He subsequently brought an ICBC claim for several heads of damages, including pain and suffering, loss of housekeeping capacity, future care, and out of pocket expenses. The Court held that the bus driver was liable for the accident for not being more attentive to the situation at hand.

 

[72] The standard of care to which Mr. Neuhold was subject included taking a careful enough look into the rear-view mirror as was appropriate under the circumstances in existence at the time. As he candidly admitted in his evidence, he was under no specific time constraints: “If you’re late, you’re late”. Safety of his passengers was his primary consideration.

 

[75] I appreciate that Mr. Neuhold is not subject to a standard of perfection nor is he the plaintiff’s insurer. But when I apply the legal principles to which I have referred above to my findings of fact, I conclude that the defendants have not satisfied the burden on them to establish that Mr. Neuhold used all due, proper and reasonable care and skill to avoid or prevent injury to the plaintiff.

 

[76] Based on my review of the video, I am of the view that Mr. Neuhold did not look carefully enough in his rear-view mirror before deciding to perform his final outside mirror check, which preceded his putting the bus in motion. Had he in fact taken a “long hard look” or a “pretty significant look” in his rear-view mirror as Ms. Trott stated that he did, he would have seen his elderly, frail and “hunched” passenger in the process of slowly rising from his seat.

In Heyman v. South Coast British Columbia Transportation Authority, the Plaintiff was a pedestrian running in order to catch his bus. He waved his hands as he approached from the front, trying to get the bus driver’s attention. The bus driver began to pull away, striking the Plaintiff‘s hand, and causing him to fall to the ground. The back wheel of the bus drove over the Plaintiff‘s ankle. The Plaintiff also broke his shoulder. The Plaintiff brought an ICBC claim for damages for pain and suffering, as well as other forms of damages. The issues of liability and quantum (damages) were severed, with a trial on liability proceeding first. The Court found both parties to be at fault for the accident, with the pedestrian bearing 60% of the blame, and the bus driver 40%.

 

[66] The analysis then turns to whether Mr. Cooper failed to meet the standard of care of what would be expected of a reasonably prudent bus driver in the circumstances. This questions turns on whether it was reasonable for Mr. Cooper, in compliance with what he understood company policy to be, to simply close the doors of the bus and accelerate away from the bus stop notwithstanding Mr. Heyman’s approach.

[67] In my view, reliance on this alleged policy is no answer to the claim that Mr. Cooper breached the standard of care. I say alleged policy because it is not set out anywhere in writing, notwithstanding that West Vancouver Transit has in place an extensive policy manual setting out detailed operational practices and policies. That said, I have no reason to question Mr. Cooper’s evidence that drivers are instructed to leave once there is no one else waiting at a bus stop.

[68] However, Mr. Cooper’s conduct is not to be measured against a general policy, but rather must be considered in light of the circumstances that presented at the time. As noted by Madam Justice Rowles in Wang, the question is whether there was a real risk of harm that could reasonably be avoided.

[69] In my view, Mr. Heyman approaching the bus in an awkward run waving his arms in the air with a view to getting the driver’s attention and hopefully having the bus stop so he could board, presented a real risk of harm. I note in particular the fact, as pointed out by counsel for the defendants, that the road on which the bus was situated was quite narrow, in fact not much wider than the bus itself. That put the bus in close proximity to pedestrians on the adjacent sidewalk and heightened the need for vigilance on Mr. Cooper’s part. Again, that is particularly so given the manner in which Mr. Heyman was approaching.

In Wong v. South Coast British Columbia Transportation Authority, the Plaintiff was an elderly woman who boarded a bus, and before she could be seated, the bus driver pulled abruptly into traffic, causing the Plaintiff to fall. The bus driver then abruptly slammed on the brakes. The Plaintiff suffered a fractured hip in the incident. The Court held the bus driver to be liable for failing to ensure that the Plaintiff was seated before started to proceed into traffic. The Court also found the Plaintiff to be 25% liable for the accident for not entering through the front doors, and for not holding onto any bars or seat holds.

 

[40] In all of the circumstances of the case at bar, I am of the view that Mr. Pinnell breached the standard of care of a reasonably prudent bus driver by entering traffic without warning Ms. Wong that he was about to enter traffic and without doing an adequate visual check to ensure that Ms. Wong had returned to her seat or was securely standing. In so doing he was also in breach of the Operators Policy and Procedures Manual, para 6.11.

 

[42] Each case must be considered on its own facts and in this case I accept the defendant’s submission that it was negligent of Ms. Wong, as an experienced bus rider, to enter via the rear doors when she knew that she required directional assistance and she knew that she needed to validate her husband’s ticket. Had she entered via the front doors, Mr. Pinnell would have been more aware of her presence and of her age and circumstances. It was also negligent for Ms. Wong not to hold onto the many bars and seat holds available to her as she returned to her seat. I find it probable that holding onto something would have prevented the fall or reduced the injury.

In Falconer v. B.C. Transit Corporation, the Plaintiff was injured after exiting the bus at a bus stop. The Defendant had stopped approximately one bus length behind the normal bus stop. There was no curb where the bus driver stopped. Upon exiting the bus, the Plaintiff slipped on some snow. The Plaintiff brought an ICBC claim for damages for pain and suffering, as well as other forms of damages. The liability aspect was heard separately. The Court held the Defendant to be 75% at fault for the accident, and the Plaintiff 25%.

 

[44]         In my view, a prima facie case of negligence has been established by the plaintiff. Although Mr. Falconer may not have been able to say what caused him to fall, I have found it was the lower level, icy surface upon which he stepped off the bus due to where the bus driver chose to stop the bus.

 

[47]         In addition, Mr. Rogers breached the standard of care expected of a bus driver by leaving the bus stop. An elderly passenger had slipped and fallen in the immediate vicinity of the rear door of the bus. The fact Mr. Rogers left the scene can only mean he did not perform the appropriate check in his right mirror. To quote Mr. Cameron, “I don’t see how a person can drive away in a bus without checking the right mirror to see that they are clear.… You could have a kid reaching in there for a ball under the tires or whatever”. Although this breach of the standard of care did not cause the plaintiff’s injury, it indicates to me a “general lack of care and inattention” by Mr. Rogers in so far as his responsibilities to passengers were concerned. See:  Donald v. Huntley Service Centre Ltd., (1987) 61 O.R. (2d) 257 (S.C.J.) at para. 9.

 

[50]         In addition to what was stated by counsel, I would add Mr. Falconer’s evidence that before he stepped down from the bus, he saw some ice shining through the snow. In my view, this should have prompted him to debark utilizing the utmost of caution. In the alternative, he should have exited from the front of the bus if it was more appropriate to do so.

 

[53]         I conclude the defendant’s degree of fault is greater than the plaintiff’s.

In Erickson v. Sibble, the Plaintiff was injured as a passenger on a bus, and brought an ICBC claim for damages. The bus driver had stopped abruptly in an effort to avoid running a red light, at which point the Plaintiff was injured. There was no impact with another vehicle. The Court held that the bus driver was 75% liable for the accident.

 

[67]         Mr. Sibble’s sudden and vigorous braking caused the bus to come to an abnormally abrupt and jarring stop.  The stop was not in the nature of a movement that would fall within the normal range reasonably expected by the transit travelling public, as was the case for example in Sawatsky v. Romanchuk, [1979] B.C.J. No. 964 (S.C.).  There was no reason, such as a pedestrian stepping out in front of the bus or a vehicle unexpectedly appearing or threatening to appear in Mr. Sibble’s oath, so as to justify stepping on the brakes with such sudden and excessive force.  Even by jamming on the brakes, Mr. Sibble was not able to stop the bus until approximately one-third of its length had intruded into the Intersection.

 

[68]         I find that Mr. Sibble glanced into his interior mirror as soon as he had made the stop to ensure that his passengers were safe precisely because he knew that the stop had been abnormally abrupt.  It is not clear why at that time he did not see evidence of Ms. Erickson’s mishap.

 

[69]         The evidence supports a finding that had Mr. Sibble been maintaining a proper lookout and exercising due care and attention as he advanced on this major intersection, he would not have been “caught short” in the sense of not having sufficient time to safely stop or proceed through safely before the light turned red.  The evidence as a whole supports the conclusion that he failed to exercise the due care and attention and otherwise conduct himself in a manner reasonably expected of a prudent bus operator in all of the circumstances.  Stated another way, I find that the Accident would not have occurred just the same had Mr. Sibble acted in accordance with his standard of care in discharge of the high duty that he owed to Ms. Erickson.

In Niedermeyer v. Charlton, the Plaintiff was seriously injured as a passenger on a tour bus, and brought an ICBC claim for damages. Prior to her trip to Whistler, she signed a waiver of liability, which included activities at Whistler, in addition to travel to and from Whistler. The Defendant bus driver admitted negligence, however the waiver was upheld by the Court, thereby dismissing the Plaintiff’s claim. The decision is currently under appeal. The Court of first instance commented that:

 

[80]         In my view, the Release is a clear and relatively easy to read document. Although some of the print is small, large capitalized portions of the Release draw attention to the important features of safety, assumption of risks, release of liability and waiver of claims. A reasonable person would recognize the purpose and extent of the document, including the connection between the release and travel to and from the tour site.

 

[81]         I have concluded that the defendants were not obliged to point out the waiver clauses, with specific reference to the bus transportation to and from the tour site. There were no distinct features of the bus trip as opposed to the other zip line activities that should have been brought to the plaintiff’s attention.

 

[93]         I have considerable sympathy for the plaintiff due to the injuries sustained in the accident. The plaintiff is entitled to some benefit as an insured person under Part VII of the Act. However, the plaintiff is not entitled to recover damages due to the defendants’ negligence because she surrendered that right when agreeing to the waiver and release of all claims as a condition of being permitted to use the defendants’ zip line facility.