Bus Driver Found at Fault for Injuries to Passenger, $38,000 Non-Pecs for Fractured Wrist

In reasons for judgment published today on the BC Supreme Court website (Patoma v. Clarke) a Plaintiff was awarded $38,000 for non-pecuniary damages for injuries he sustained while on a Translink bus.
The Plaintiff was injured when he was thrown to the floor of a bus as a result of the driver’s sudden braking.  The key facts and the law surrounding this finding were summarized and applied by Madam Justice Fenlon as follows:

[2] As the defendant Mr. Clarke put his bus in motion to leave the stop, two young women, the defendants Claudia Wang and Jane Doe, who were running across the street mid-block to catch the bus, suddenly appeared in front of the bus. Mr. Clarke braked to avoid hitting the young women.

[3] As a result of the sudden braking, Mr. Patoma was thrown to the floor of the bus, and fractured his left wrist….

[6] It is clear that bus drivers owe a duty of care to their passengers based on the reasonable foreseeability test. The standard of care is the conduct or behaviour that would be expected of the reasonably prudent bus driver in the circumstances. This is an objective test that takes into consideration both the experience of the average bus driver, and what the driver knew or should have known:  Wang v. Horrod (1998), 48 B.C.L.R. (3d) 199 (C.A.).

[7] I note that the standard to be applied to the bus driver is not one of perfection. Nor is the transit company in effect to be an insurer for any fall or mishap that occurs on a bus.

[8] The first question I must address is whether Samuel Clarke met the standard of care he owed to his passengers as he pulled his bus away from the bus stop that August night…

[27]         From Mr. Clarke’s description, I find that he was looking in his left side mirror as he took his foot off the brake, and that he permitted the bus to move albeit ever so slightly, before looking forward and without checking through his left blind spot. That is why he did not see the pedestrians, who must have been in that blind spot, as he lifted his foot from the brake and the bus started to move.

[28]         In my view, the driver either failed to check that blind spot as he started to lift his foot off the brake, or failed to sweep the area to the left of the bus far enough out to detect the two young women as he moved to check his left mirror before he pulled out. The two pedestrians were, at that time, crossing the street in some fashion from his left….

[31] In the case at bar, the driver set the bus in motion, albeit ever so slightly, without noticing two pedestrians already in the street and moving to cross in front of the bus, causing him to have to brake suddenly.

In assessing the Plaintiff’s claim for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $38,000 Madam Justice Fenlon summarized the Plaintiff’s injuries as follows:

[42]         The fracture Mr. Patoma sustained could not be set despite two attempts. He was required to undergo surgery with external pins to set bones in place. The surgery occurred eight days after the accident. The external fixator was removed on September 29, 2005, approximately five weeks after the surgery. Mr. Patoma underwent physiotherapy, beginning mid-October, attending four times and then two sessions in the months following until February 2006. He engaged in daily exercises to strengthen his wrist.

[43]         I find Mr. Patoma worked hard at his rehabilitation. By 2007, about two years after the accident, he was fully recovered except for occasional cramping or tightness in the muscles of his left hand. It is unlikely that Mr. Patoma will develop arthritis in his wrist or need further surgery, according to the medical report of Dr. Perry.

[44]         During the healing process, Mr. Patoma could not garden during part of 2006. He is an avid tennis player, and he could not play tennis or badminton in the fall of 2005. But the biggest impact by far of the injury was on Mr. Patoma’s ability to play the bagpipes. He told the court that he engaged in competitions in his youth. At one point, he took lessons from the personal piper to Queen Elizabeth. He said that classical Highland piping requires considerable dexterity in the fingers.

[45]         There was evidence that playing the bagpipes was an important part of Mr. Patoma’s daily life. He is a bachelor and lives alone, and he said that he played in the morning and the evening, and it brought him great comfort. It was a cause of real concern that his fingers were too stiff for him to play without slurring, and for him to play with the kind of skill and at the level he was accustomed to. He said that, when he found he could not play, he was gripped by worry and anxiety.

[46]         Mr. Patoma happily reported at trial that, by 2007, he had made a “terrific recovery”. He said that at 71, he still has the dexterity in his fingers that he had as a teenager….

[48] I find that an appropriate quantum of damages to compensate Mr. Patoma for his pain and suffering and temporary loss of enjoyment of life is $38,000.