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 ‘bus collision’

Bus Driver Liable For Driving Over Dip at Excessive Speed

June 19th, 2015

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing fault for an injury to a bus passenger.

In today’s case (Hutchinson v. Dyck) the Plaintiff was a passenger on a bus.  As the bus drove the plaintiff “was ejected upwards from his seat and hit the seat on the way down.”.  He suffered a burst injury in his low spine which resulted in chronic mechanical back pain.

The bus driver denied fault for the incident arguing he drove with reasonable care but the Court rejected this finding he drove with excessive speed over a depression in the road which caused the injury.  In reaching this conclusion Madam Justice Duncan provided the following reasons:

[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.


60/40 Liability Split After Pedestrian Steps in Front of Bus

July 29th, 2014

Corrected reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing fault between a pedestrian and a bus driver.

In today’s case (Whelan v. BC Transit) the Plaintiff pedestrian “was struck and had his foot run over by a BC Transit bus driven by the defendant Henry Kobbero, after Mr. Whelan had stepped onto the road to avoid some other pedestrians on the sidewalk.”

The bus was stopped shortly before the incident dropping off passengers and moved forward with the driver seeking to merge back with traffic.  Mr. Justice Schultes found both parties were to blame with the Plaintiff bearing the lion’s share of fault.  In reaching this decision the Court provided the following reasons:

[71]         On all the evidence I am satisfied that there was a period of time, of more than transitory length, during which the bus was travelling forward, still in the curb lane, but the focus of Mr. Kobbero’s attention was on his left mirror and the act of merging. It was during this period that Mr. Whelan stepped out on the road and, had Mr. Kobbero’s attention been prudently apportioned between merging and the curb lane in front of him, he could have seen and reacted to the pedestrian in time of avoid a collision. His focus on merging reflected an assumption, which I find was not reasonable in light of his overall awareness of the range of pedestrian hazards, that his forward check earlier in the process was sufficient. However briefly, I conclude that he did fall below his required standard of care.

[72]         As was obvious from my earlier comments in this discussion, Mr. Whelan was himself contributorily negligent in this accident. In addition to his disregard for the bus’s right of way and his needless decision to place himself onto the travelled portion of the roadway simply to avoid a moment’s pause in his progress, he made an assumption that was even less grounded in objective fact than Mr. Kobbero’s — that the driver checking his shoulder meant that the bus would have moved into the left lane before it reached the area where he stepped off the sidewalk…

75]         I would characterize Mr. Kobbero’s lapse of care in conduct as falling more towards the momentary or minor end of the spectrum than towards the extremely careless end. I have found that it was a decision to focus his attention fairly briefly on an admittedly more pressing task, based on the faulty assumption that there were no risks directly ahead of him. This was not the kind of lapse that was inevitably going to cause harm; it required a pedestrian to do one of the foolish things that Mr. Kobbero has been trained to expect in order for that to happen. I conclude that Mr. Kobbero should bear 40% of the liability for this accident.

[76]         Mr. Whelan’s actions conversely, demonstrate a higher degree of carelessness. As a pedestrian he was extremely vulnerable to the oncoming bus and there were no safe circumstances under which he could have stepped on the road with it still moving forward in that curb lane. It was in essence a gamble on things playing out as he assumed they would, with a large downside, fortunately only a small part of which materialized here, to being wrong. Accordingly I fix his liability at 60%.


British Columbia Bus Accidents and the Law

October 22nd, 2008

Reasons for judgement were released today dismissing the claim of a Plaintiff against the Greater Vancouver Transportation Authority for injuries sustained while on a bus in White Rock in 2005.

At some point after boarding the bus the Plaintiff stood up, “She held the floor-to-roof stanchion adjacent to the courtesy seat with her right hand.  She rotated clockwise so that her back was to the collapsible seat.  As she did so, she changed her grip in order to hold the stanchion with her left hand.  (the Plaintiff) let go of the stanchion she had been holding with her left hand as she proceeded to sit down in the collapsible seat and before she was seated.  (the Plaintiff) testified to her recollection that the bus accelerated from the bus stop causing her to lose her balance and to descend with some force.  The sacral-lumbar portion of her back struck the plastic armrest affixed to the left side of the collapsible seat.  A photograph of the injury taken later in the day indicates that the point of contact was directly on the sacral-lumbar area or the coccyx, and not to the left or right of the spine.”

The court dismissed the claim finding that “On the evidence that has been adduced, I conclude and find as a fact that the sole cause of the accident was (the Plaintiff’s) omission to take precautions to ensure her own safety on a moving bus.  She omitted to hold the stanchion that was readily available to her as she sat down.  I am not persuaded on a balance of probabilities that the bus was operated in any manner which could be classified as negligent.”

While this is by no means an exciting claim, Mr. Justice Pitfield did a great job in summarizing some of the authorities that deal with the duty of care owed by bus drivers to their passengers.  He recited the following well known principles when dealing with injured occupants on a bus:

Although the carrier of passengers 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

…once an accident has occurred, the defendant must meet the heavy burden of establishing that he used all proper and reasonable care and skill to avoid or prevent injury to the passenger.  The standard of care imposed is the conduct expected of a reasonably prudent bus driver in the circumstances.  The court must consider the experience of an average bus driver, as well as anything that the particular driver knew or should have known about the passenger.  The standard of care required is higher when the driver knew or ought to have known that the passenger was handicapped or elderly.