Skip to main content

Tag: bus accidents

BC Court of Appeal – No Reverse Onus in Bus Driver Liability Claims

Written by admin on . Posted in ICBC Liability (fault) Cases.

There are a line of cases suggesting that once a plaintiff passenger establishes that he or she was injured while riding on a public carrier, a prima facie case of negligence is made out.
Today reasons were released by the BC Court of Appeal finding this is not so.
In today’s case (Benavides v. ICBC) the Plaintiff was awarded damages after being injured on a bus.  At trial the Court found the driver was negligent.  On appeal the BC Court of Appeal noted that the trial judge was wrong in finding there is a reverse onus in such cases however upheld the result on the basis that there was sufficient evidence to establish driver negligence.
The BC Court of Appeal provided the following reasons setting out the principles of liability:

[17]         I draw from this review of the law the following principles:

·       The mere fact that a passenger is injured while riding on a public carrier does not establish a prima facie case of negligence.

·       The plaintiff bears the burden of proving on a balance of probabilities that the defendant breached the standard of care owed to the plaintiff.

·       Once the plaintiff establishes a prima facie case of negligence, in practical terms the burden shifts to the defendant to answer the case against him and to show that he was not negligent.

Bus Driver Partly Liable For Passenger Injury After Stopping Too Far From The Curb

Written by admin on . Posted in ICBC Liability (fault) Cases.

Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, finding a bus driver partly liable for injuries after a passenger fell while disembarking the bus.
In the recent case (Isaacs v. Coast Mounatain Bus Company Ltd) the Plaintiff fell while getting off the bus.  At the time the bus stopped some 12-14 inches from the sidewalk contrary to their policy of stopping closer to the curb.   The Plaintiff attempted to jump to the curb resulting in injury.  The Court found both parties equally to blame for the incident.  In holding the Defendant 50% liable Madam Justice Watchuk provided the following reasons:

[47]         If the distance of the front door of the bus from the curb was greater than ten inches, there is potential negligence on the defendants.  As stated above, Translink has in place guidelines for a standard bus stop that state that buses should be stopped parallel to the curb and within six to ten inches of that curb.  However, the defendants’ negligence is not to be measured against a general policy, but rather must be considered in light of the circumstances that presented themselves at the time of this specific accident (Heyman v. South Coast British Columbia Transportation Authority (c.o.b. Translink), 2013 BCSC 1724 at para. 68). 

[48]         Although the defendants’ policy directive is not determinative, in light of these specific circumstances I find that the policy of stopping less than ten inches away from the curb reflects the standard of care required by a reasonably prudent bus driver.  Thus, if the distance between the front door and the curb was greater than ten inches, there would be a prima facie case of negligence and it would be for the defendants to establish that the plaintiff’s injuries occurred without negligence on their part or due to a cause for which the defendants were not responsible. 

[49]         Ms. Isaacs’ evidence is that the bus came to a stop at an angle with the front of the bus further from the curb than the back of the bus.  Her evidence was that the distance from the bottom step to the curb was 12-14 inches.  In cross-examination she disagreed with the statement that the distance was only six inches from the curb, and responded, “Oh no – it was wider, quite wide”.  This is consistent with her evidence that when she was on the sidewalk after the fall, Ms. Isaacs observed that the rear of the bus was closer to the sidewalk than the front. 

[50]         I accept Ms. Isaacs’ evidence in this regard.  I have noted that her memory of the number of steps at the front of the bus is incorrect, as she recalled one step at the front when there are three steps on this type of bus.  However, other than this point, her evidence with regard to the location of the bus when it was stopped is persuasive and is consistent with the other details of the scene at the time of her fall. 

[51]         The evidence of Mr. Payne is, I find, evidence of his usual good practice with regard to stopping the bus with the front and rear exits at an equal distance, and six inches from the bottom of the steps to the curb.  However, his evidence with regard to this stop is internally inconsistent.  He testified that he drives the bus straight in the curb lane.  He also testified that he angles the wheel to the left prior to the stop so that he is ready to pull out into traffic when the bus leaves the stop.  On the evidence of this stop of this bus prior to this incident, I find that Mr. Payne angled the steering wheel to the left prior to the bus coming to a complete stop.  Thus the front of the bus and the front door were further from the curb than the back of the bus and the back door. 

[52]         I accept Ms. Isaacs’ evidence that the bottom step of the front door exit was 12-14 inches from the curb, and therefore greater than ten inches from the curb.  I accept her evidence that the distance is the reason that she jumped from the bottom step to the curb rather than going down the bottom step to the pavement, crossing and stepping up on the curb to the sidewalk. 

[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. 

Proving Fault After A Transit Bus Collision – The Reverse Onus

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 61 Comments on Proving Fault After A Transit Bus Collision – The Reverse Onus

If you are injured while a passenger in a transit bus British Columbia law requires the bus driver to prove they were not at fault.  This is a ‘reverse onus’ from most personal injury claims where the Plaintiff must prove the Defendant was at fault.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this.
In last week’s claim (Tchir v. South Coast British Columbia Transportation Authority) the plaintiff was riding as a passenger in a bus “when an unidentified driver came to an abrupt stop in front of the bus“.  The bus driver was forced to brake hard to avoid collision and the Plaintiff was thrown from her seat and injured.
The Court found both motorists were to blame for the incident.  In discussing the reverse onus in proving fault, Mr. Justice Davies provided the following summary of the law:
[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. The question then is: What suffices to discharge this onus?
[40]         Concerning the last question posed, McLachlin J. went on to say:
This has been considered in at least two British Columbian cases and I refer to Lawrie v. B.C. Hydro and Power Authority (unreported, May 31st, 1876, B.C.S.C. Vancouver Registry No. 32708/74) and Fischer v. B.C. Hydro and Power Authority (unreported, February 19th, 1980, B.C.S.C. B781446). In the latter case, at page 8, Taylor, J., set out what the defendant must show to discharge the onus upon it in the following terms:
·        ” Thus there is in this case an onus on the defendants to show that the plaintiff came by her injury without negligence on their part or as a result of some cause for which they are not responsible. That is to say they must show that the vehicle was being driven carefully at the time of her fall, or that her fall resulted from some cause other than the manner in which the bus was being driven.”
[41]         Also instructive on the issue of the standard of care expected of the Transit Defendants in this case is the decision of Dardi J. in Prempeh v. Boisvert, 2012 BCSC 304 [Prempeh] at para. 15, in which she wrote:
… The standard of care owed to a plaintiff passenger by a defendant bus driver is the conduct or behaviour that would be expected of a 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 anything the defendant driver knew or should have known: Wang v. Horrod (1998), 48 B.C.L.R. (3d) 199 at para. 39 (C.A.); Patoma v. Clarke, 2009 BCSC 1069 at para. 6.
 

Bus Driver Liable Following Injury to "Elderly, Frail and Hunched" Passenger

Written by admin on . Posted in ICBC Liability (fault) Cases.

Adding to this site’s archived cases addressing bus driver liability for injuries to passengers, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding a bus driver partly liable after putting the bus in motion when an elderly passenger was attempting to exit.
In this week’s case (Bideci v.Neuhold) the 93 year old plaintiff boarded a bus.  When the bus came to his stop he “spent several seconds in the process of attempting to rise from his seat“.  The bus driver failed to see this, closed the door and put the bus in motion prior to the plaintiff exiting.  This caused the Plaintiff to fall resulting in injury.
In finding the bus driver liable Mr. Justice Abrioux provided the following reasons:
[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.
[73]         Mr. Neuhold’s evidence was that photograph 8 of Exhibit 7 was the most accurate approximation of what he would have seen as he looked in his rear-view mirror, with a caveat being that he would not have been able to see the wheel well on the passenger side of the bus.
[74]          Mr. Bideci’s seat is clearly visible in this photograph and there were no obstructions such as someone standing or moving which would have obscured Mr. Neuhold’s view of this area.
[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.
[77]         Accordingly, I conclude the defendants have not satisfied the burden on them to answer the prima facie case of negligence and I find them liable for the Accident.
 

Bus Driver Liable For Accelerating Prior To Elderly Passenger Being Seated

Written by admin on . Posted in ICBC Femur Injury Cases, ICBC Hip Injury Cases, ICBC Liability (fault) Cases.

Adding to this site’s archives addressing bus driver liability for injuries to passengers, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such an incident.
In this week’s case (Wong v. South Coast British Columbia Transportation Authority) the 81 year old plaintiff boarded a bus and was on her way to her seat when “the driver pulled into traffic in an abrupt motion“.    The Plaintiff fell and the driver then “abruptly braked“.  The Plaintiff’s hip was fractured in the incident.
Madam Justice Power found the bus driver was negligent in failing to wait until the elderly plaintiff was seated before accelerating.  In finding the driver partly liable for the incident the Court provided the following reasons:
[25]         In cross-examination, Mr. Pinnell conceded that “it was surprising” that Ms. Wong fell one foot from the fare box and that in the time prior to the fall, he never saw anyone coming down the aisle.  He acknowledged that if he had seen Ms. Wong, he would have told her to sit down.  He agreed that there is a policy and procedures manual for bus drivers and that there is a policy to allow elderly people a chance to sit before moving from a stopped location.  He acknowledged that at examination for discovery he did not think such a policy was in place…
[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.
The Plaintiff’s fractured hip required surgical intervention.  Despite having an ‘uneventful’ recovery she was left with permanent restrictions in mobility.   The Court went on -to assess non-pecuniary damages at $90,000 before slightly reducing these for contributory negligence.

Bus Driver Negligent For Injuries Caused in "No-Impact" Incident

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 60 Comments on Bus Driver Negligent For Injuries Caused in "No-Impact" Incident

As highlighted earlier this year, a motorist can be found negligent for injuries caused to a passenger even in the absence of a collision.  If a motorist makes an abrupt movement causing injuries to occupants liability can follow if the abrupt movement falls below the expected standard of care.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing such an incident.
In last week’s case (Erickson v. Sibble) the Plaintiff was riding as a passenger in the Defendant’s bus.  As he approached an intersection he brought his vehicle to an abrupt stop to avoid running a red light.  The sudden breaking caused injuries to the Plaintiff.  In finding the bus driver negligent and liable for the injuries sustained in this ‘no-impact’ incident Madam Justice Ballance provided the following reasons:
[62]         I have found that Mr. Sibble made the following oral and written statements:
·       he apologized to Ms. Erickson and Ms. da Silva for the manner of the stop and declared that he did not want to get a “red light” ticket;
·       he told Ms. Erickson that he had applied the “emergency brake”, by which he was referring to the maxi-break, at the time of the stop;
·       the statements that Mr. Pearson captured in his incident report and those that Mr. Pearson testified about, as detailed above; and
·       that he had stopped “a little harder than normal”, as recorded in his incident report.
[63]         Mr. Sibble’s statements constitute admissions and are admissible against him, either as admissions against interest or as an exception to the hearsay rule:  R. v. Evans, [1993] 3 S.C.R. 653; R. v. Foreman (2002), 169 C.C.C. (3rd) 489 (Ont. C.A.); R. v. Mapara, 2005 SCC 23.  If admitted on the latter basis, I find that the requisite features of reliability and necessity are present.  Under either doctrine, his admissions are admitted for their truth.
[64]         I am satisfied that from the outset of Ms. Erickson’s journey, Mr. Sibble’s driving pattern was erratic, by which I mean that he engaged in a pattern of acceleration and braking that caused the bus to lurch and jerk as it travelled along.
[65]         The evidence establishes that the bus was moving at not less than 40 kilometres per hour on its approach to the Intersection, and when Mr. Sibble was a distance of ten or, at most, fifteen metres from it, he became aware that the light was amber.  The evidence supports the inference that when he noticed the amber light, he could not be sure how long it had been that colour, and was therefore concerned that he was approaching the Intersection on a stale amber that was about to turn red.  Mr. Sibble was concerned about whether he had enough time to stop safely or sufficient time to proceed through.  He anticipated that were he to opt for the latter, the light could change to red and he might get a “red light” ticket.  By the time Mr. Sibble elected to stop, the bus was even closer to the Intersection than when he had first noticed the amber light.
[66]         I accept that, at first Mr. Sibble braked “softly”.  However, it became readily apparent to him that despite his braking efforts, the front of the bus was moving over the crosswalk and trespassing into the Intersection.  The probabilities of the situation show that in recognizing this unwelcome state of affairs, Mr. Sibble applied the brakes suddenly and with much greater force, equivalent to slamming hard on the brakes, to prevent the bus from ingressing further into the Intersection.  I think it is more likely than not that he also drew on the maxi-brake in a misguided attempt to fortify the conventional braking.
[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.

Bus Driver Liable For Injuries Caused by Hard Braking

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Liability (fault) Cases, Uncategorized. 99 Comments on Bus Driver Liable For Injuries Caused by Hard Braking


As previously discussed, a collision is not necessary in order for a motorist to be responsible for personal injuries caused to others.  This was demonstrated again in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Prempeh v. Boisvert) the Plaintiff was a passenger on a bus operated by the Defendant.  The Defendant “vigorously and abruptly applied the brakes to avoid a collision with the two vehicles which had stopped ahead of him“.  This caused the plaintiff, who was standing holding a metal handle, to be thrown down the aisle.  The Plaintiff was injured in the process.
The Plaintiff alleged the driver was negligent in braking hard.  The Defendant disagreed arguing this action was necessary to avoid collision.  Ultimately Madam Justice Dardi found the driver fully liable for the incident for driving without due care an attention.  In assessing the driver at fault the Court provided the following reasons:

[22] Mr. Boisvert was required to brake hard to avoid hitting the two vehicles that had stopped on the roadway in front of the bus he was operating. The first of the vehicles had stopped to turn left on Hamilton Street. The second car stopped behind the left-turning vehicle without a collision and without accompanying honking or screeching of brakes. It can reasonably be inferred that this occurred within a time frame that should have permitted a reasonably prudent user of the road driving behind those vehicles an opportunity to react and brake without incident. The application of the brakes was not a reaction to an emergency or unexpected hazard.

[23] Moreover, Mr. Boisvert properly conceded that, regardless of an abrupt or unexpected stop of a vehicle ahead, in order to prevent accidents prudence mandates that at all times a bus driver drive defensively and maintain a safe cushion or certain distance from a vehicle travelling in front of the bus. This is precisely to be able to stop safely in the event of an unexpected manoeuvre by that vehicle.

[24] I cannot find with precision whether the sudden and hard application of the brakes occurred because Mr. Boisvert was travelling too rapidly, not maintaining a diligent look-out or because he failed to maintain a safe distance from the vehicle in front of him. However, in weighing all of the evidence I have concluded that Mr. Boisvert’s sudden and vigorous application of the brakes, in the context of all the circumstances in this case, establishes a prima facie case of negligence against Mr. Boisvert. It is not conduct attributable to a reasonably prudent bus driver.

[25] Having found a prima facie case of negligence the onus is upon the defendants to establish that Mr. Boisvert was not negligent or that the incident was attributable to some specific cause consistent with the absence of negligence on his part.

[26] I note that Mr. Boisvert’s assertion at his examination for discovery that he could have stopped smoothly but the bus brakes on the new trolley bus “grabbed” and caused a “hard stop” is no answer to this claim.

[27] Mr. Boisvert 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 cannot be expected to assume any risk associated with the operation of the vehicle which could not reasonably be anticipated by a passenger. The usual braking of a driver as he moves through traffic would not cause a passenger to be thrown to the floor so violently. Moreover it is well established on the authorities that the responsibility of a public carrier extends to ensuring that its modes of conveyance permit the bus to be operated in a safe and proper manner: Visanji at para. 32.

[28] I have considered all of the authorities provided by both parties. Though useful as providing guidance on the governing principles, each case turns on its own facts. I note that unlike the circumstances in Lalani v. Wilson, [1988] B.C.J. No. 2408 (Q.L.) (S.C.), upon which the defendant relies, the bus driver here was aware that the plaintiff had fallen – the possibility of injury was self-evident. Mr. Boisvert’s attention was drawn to such a possibility at the time of the incident and in compliance with the bus operator training manual he should have recorded all pertinent information regarding the incident. While the court in Lalani found it would have been unfair to shift the burden, this is not so in this case.

[29] On balance I am not satisfied that the defendants have shown that Mr. Boisvert conducted himself in a reasonable and careful manner consistent with the high duty of care imposed on those engaged in public transit. In the result, I conclude that Mr. Boisvert, however fleetingly, breached the standard of care of a reasonably prudent bus driver. I find the defendants negligent.

Bus Passenger Injuries: When Can a Driver be sued in Negligence?

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 46 Comments on Bus Passenger Injuries: When Can a Driver be sued in Negligence?


When a Bus Driver is involved in an at-fault collision causing injury to the passengers a suit for damages can usually be brought.  What if there is no collision but instead the bus driver makes an abrupt move causing injury to the passengers, can a suit succeed on these facts?  Depending on the circumstances the answer is yes.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing this area of the law.
In this week’s case (Habib v. Jack) the Plaintiff was injured while riding on a bus in Burnaby, BC.  The Plaintiff testified that the driver went over a speed bump and that “her seat cushion slid out from under her and she became briefly airborne during which time her neck snapped forward and back“.  The Court ultimately dismissed the lawsuit finding that the Defendant drove the bus appropriately.  Prior to making this finding Madam Justice Ross provided the following useful discussion addressing this area of the law:

[26] The standard of care owed by a transit operator to a passenger was addressed in Day v. Toronto Transportation Commission, [1940] S.C.R. 433. Justice Hudson described the duty as follow:

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: 4 Hals., p. 60, paras. 92 and 95. In an old case of Jackson v. Tollett [(1817) 2 Starkie 37], the rule was stated by Lord Ellenborough, at p. 38, as follows:

Every person who contracts for the conveyance of others, is bound to use the utmost care and skill, and if, through any erroneous judgment on his part, any mischief is occasioned, he must answer for the consequences.

[27] In this province, Madam Justice Humphries summarized the principles to be applied in Lawson v. B.C. Transit, 2002 BCSC 1438, as follows at paragraph 18:

As set out in Wang v. Harrod, supra, 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.

[28] Mr. Justice Berger in Sawatsky v. Romanchuk, [1979] B.C.J. No. 964 (S.C.) noted that:

…this is not a case where negligence has been established. I say that because, though the bus lurched as it started up, it was a lurch that she, as someone who had travelled on the buses for twenty years had experienced in the past. Anyone who travels on the buses must expect that from time to time the movement of the buses will not be smooth and uneventful. Lurches are part of the movement of these buses and something that the people who travel on the buses learn to expect. Accidents do happen. And there are bound to be some accidents on the bus system. And some of them, like this accident, will not give rise to a right to damages.

Madam Justice Ross goes on to cite about a dozen other cases dealing with Bus Passenger injuries in BC making this week’s case a good starting point in researching bus driver liability for injury to passengers.

Bus Driver Found 50% Responsible For Collision With Cyclist Riding in Crosswalk

Written by admin on . Posted in ICBC Liability (fault) Cases. 56 Comments on Bus Driver Found 5056 Responsible For Collision With Cyclist Riding in Crosswalk


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a collision between a school bus and a cyclist.
In today’s case (Torok v. Sekhon) the Plaintiff was travelling southbound on a sidewalk in Surrey, BC.  He was travelling on the left side of the street.    At the same time the Defendant was operating a school bus and driving in the opposite direction of travel.  As the Defendant approached an intersection he put on his right turn signal and proceeded to make a right turn.  The Plaintiff, who was travelling down hill, did not yield and entered the roadway from the sidewalk.  A collision occurred.
Mr. Justice Smith was asked to determine the issue of fault.  The Court found that both parties were equally at fault for the collision.  In reaching this decision Mr. Justice Smith reasoned as follows:

[18]         The essential fact in this case is that Mr. Sekhon did see Mr. Torok and Mr. Kolba approaching the intersection at which he planned to turn. Moreover, he was driving in an area and at a time of day when the presence of children was to be expected. The duty on a driver in such a situation was recently summarized by Greyell J. in Chen v. Beltran, 2010 BCSC 302 at para. 27:

[27]      The general principle underlying any determination of fault or blameworthiness rests on a finding whether the defendant could reasonably foresee that his or her conduct would cause or contribute to the accident. When it is known there are young children in the area drivers must use extra care and attention as children do not always behave as adults would in similar circumstances. In Chohan v. Wayenberg (1990), 67 D.L.R. (4th) 318 (B.C.C.A.), the Court of Appeal stated at 319:

… There is, of course, a need for constant vigilance for children on the roads, especially in suburban areas, for the very reason that they can not be expected always to act with the same care that is expected of adults.

[19]         The plaintiff in Chen was 11 years old. The plaintiff in this case was somewhat older, but still of an age when a reasonable driver would know that he would not necessarily act “with same care that is expected of adults”. Indeed, the tendency of teenagers to engage in reckless behaviour is well known.

[20]         Having seen Mr. Torok and knowing that their paths were about to cross, the duty of Mr. Sekhon was to proceed with caution and to complete his turn only when he could do so safely. That meant either satisfying himself that he could complete his turn before the boys reached the intersection or, more prudently, slowing or stopping until he knew that the boys had either passed the intersection or had stopped to allow him to pass.

[21]         Mr. Sekhon failed to take either precaution. Although he clearly saw the boys and knew their direction of travel before his turn, he was apparently unaware of their location as he was actually making the turn. There is no evidence of anything that would have prevented Mr. Sekhon from stopping briefly in order to ensure that he could turn safely. I therefore find that, in the circumstances, Mr. Sekhon failed to take sufficient care and was negligent.

[22]         However, I find that Mr. Torok also failed to take reasonable care for his own safety. He was riding his bicycle on a sidewalk, then into a crosswalk, and was riding on the left, rather than the right side of the road. All of those actions are violations of s. 183(2) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. He was also riding without a helmet, in violation of s. 184. Mr. Torok was of sufficient age and experience to know, and in fact did know, that he was riding in an illegal manner. He also knew that he was approaching an intersection at a high speed and needed to be aware of the possibility of vehicles turning either into or from 150th Street. He saw the approaching school bus and failed to notice its turn signal. As a result, I find that Mr. Torok was contributorily negligent.

[23]         In such circumstances, the apportionment of liability must be based on the degree to which each of the parties was at fault, not on the degree to which each party’s fault caused the damage:  Bradley v. Bath, 2010 BCCA 10 at para. 25. In Bradley, the Court of Appeal adopted the following passage from Fleming on The Law of Torts:

[25]      The concept of contributory negligence was described in John G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998) at 302, as follows:

Contributory negligence is a plaintiff’s failure to meet the standard of care to which he is required to conform for his own protection and which is a legally contributing cause, together with the defendant’s default, in bringing about his injury. The term “contributory negligence” is unfortunately not altogether free from ambiguity. In the first place, “negligence” is here used in a sense different from that which it bears in relation to a defendant’s conduct. It does not necessarily connote conduct fraught with undue risk to others, but rather failure on the part of the person injured to take reasonable care of himself in his own interest. … Secondly, the term “contributory” might misleadingly suggest that the plaintiff’s negligence, concurring with the defendant’s, must have contributed to the accident in the sense of being instrumental in bringing it about. Actually, it means nothing more than his failure to avoid getting hurt …

[Emphasis in original; footnotes omitted.]

[24]         The facts of Bradley are somewhat similar to this case. There, a bicycle on the sidewalk collided with a vehicle that was coming out of a gas station. The Court of Appeal said at para. 28:

[28]      In my opinion, the plaintiff was at fault, and his fault was one of the causes of the accident. Contrary to law, he was riding his bicycle on the sidewalk against the flow of traffic. He saw the defendant’s vehicle moving towards the exit he was approaching. Rather than making eye contact with the defendant or stopping his bicycle and letting the defendant’s vehicle exit the gas station, the plaintiff assumed the defendant saw him and would not accelerate his vehicle. In these circumstances, he was at fault for continuing to ride his bicycle across the path to be taken by the defendant’s vehicle in exiting the gas station.

[25]         Although I have found that Mr. Torok, at age 14, was old enough to be found contributorily negligent, I must still consider his age in the apportionment of fault. His conduct is to be measured against what is to be expected of a reasonable person of his age and experience, not against the standard of an adult:  see Parker v. Hehr, (20 December 1993), Vancouver B914957 (B.C.S.C.), citing Ottosen v. Kasper (1986), 37 C.C.L.T. 270 (B.C.C.A.); and McEllistrum v. Etches, [1956] S.C.R. 787.

[26]         In the circumstances, I find that Mr. Torok and Mr. Sekhon were equally at fault. Each saw the other and each failed to take the necessary precautions to allow for the other’s presence and possible movements. Balancing all of the factors, including Mr. Torok’s violations of the governing statute, his age, and Mr. Sekhon’s knowledge of the nature of the area and the likely presence of young people, I cannot say that one party is more culpable than the other. I therefore find that the defendants must bear 50 per cent of the liability for the accident.

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

Written by admin on . Posted in ICBC Liability (fault) Cases, ICBC Wrist Injury Cases, Uncategorized.

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.