Tag: no-impact collision

Bus Driver Liable For Accelerating Prior To Elderly Passenger Being Seated

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

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


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.

Damages Awarded in "No Impact" Motor Vehicle Incident


As previously discussed, given the right circumstances a lawsuit for damages following a motor vehicle incident can succeed even if there is no impact between vehicles.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this reality.
In this week’s case (Pang v. Dhalla) the Defendant made a lane change into the Plaintiff’s lane of travel.  This was done negligently forcing the Plaintiff to bring his vehicle to an abrupt stop.   The Plaintiff alleged the incident caused a disk injury although this claim was rejected.  Despite this the Court found the Plaintiff did suffer some modest soft tissue injuries due to the Defendant’s negligence and assessed non-pecuniary damages at $5,000.  In finding the Defendant liable for damages caused in a ‘no-impact’ incident Madam Justice Dillon provided the following reasons:

[7] Based upon this evidence, the plaintiff has not proven that there probably was an impact or collision between the vehicles. At best, the plaintiff hard braked to avoid an accident after the defendant turned into his lane. From the actions of the plaintiff in slowing as it became apparent that the defendant was moving her vehicle into his lane and from the evidence of the defendant, I conclude that the defendant signalled her lane change. It cannot be determined that Ms. Lee was in a position to see or not to see a signal.

[8] However, the defendant was negligent in changing lanes before ascertaining that it could be made safely without affecting the travel of another vehicle, in this case, the plaintiff’s vehicle. The defendant had to hard brake to avoid an accident. If the defendant had looked at her blind spot, she would have determined that she could not safely enter the curb lane. Her failure to do so caused the plaintiff to hard brake….

[20] In my view, the plaintiff has not proven that the braking of his vehicle to prevent an accident caused anything other than a minor exacerbation of pre-existing pain in his neck, shoulder, and lower back. Because of his failure to fully inform both doctors, their opinions about the accident causing a disc injury are seriously undermined. The minor nature of the injuries is supported by the fact that the plaintiff’s neck and shoulder symptoms resolved within a few months, the plaintiff did not take time off work, and he needed little medication. The effect on lifestyle was minimal.

[21] The defendant provided a range of damage for non-pecuniary loss of $2,500 to $5,000. The plaintiff described a range of $20,000 to $40,000. Having considered the cases provided, I conclude that an award of $5,000 is appropriate.

Can You Successfully Sue For Injuries in a "No Impact" Collision?

Further to my previous post on this topic, the law is clear that a Plaintiff can successfully sue a Defendant for physical injuries even if the Defendant never makes contact with a Plaintiff.  Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, demonstrating this.
In today’s case (Bern v. Jung) the Plaintiff was injured in 2 separate incidents.  In the first incident the Plaintiff was riding a bike down a ramp into a parkade.  At the same time the Defendant was leaving the parkade and drove his vehicle ‘in the wrong direction in the entrance lane towards the ramp area‘.  The Plaintiff “immediately applied his brakes, losing control of his bicycle and falling over the handlebars.  He fell out into the roadway.   Fortunately (the Defendant) was able to avoid striking (the Plaintiff)”.
The Defendant argued that the Plaintiff should bear some responsibility.  Mr. Justice Powers disagreed and found that the Defendant was 100% responsible for the incident despite not striking the Plaintiff.  In reaching this decision Mr. Justice Powers noted as follows:

[13]        I find that the defendant has not proven that Mr. Bern was contributorily negligent.  Mr. Bern was entitled to assume that other people would be acting properly.  The evidence does not establish that his speed was excessive to the extent that it was negligent.  I find that the sole cause of the accident was Mr. Jung’s decision to take a shortcut and travel against the direction in which traffic was supposed to flow and could reasonably be expected to flow.

[14]        Mr. Bern lost control of his bicycle and fell because of the sudden and unexpected presence of Mr. Jung’s vehicle travelling in the wrong direction.  Mr. Bern was forced to act quickly and to apply his brakes forcefully.  He essentially acted in the agony of the collision and should not be found contributorily negligent because he did so.

[15]        I find that Mr. Jung is 100% liable for the accident on June 21, 2007.

The Plaintiff suffered various injuries including pain in his clavicle, one or two fractured ribs, a fractured right triquetrum (a small bone on the outside portion of the back of the hand) and broken teeth which required dental work and root canals.
Some of the injuries were aggravated in a subsequent rear end accident.  The Court went on to award the Plaintiff $50,000 for his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) as a result of both accidents.  In reaching this figure Mr. Justice Powers summarized the effect of the Plaintiff’s injuries as follows:
[36] I find that Mr. Bern indeed was a physically active and motivated individual before the first accident.  He made an honest effort to attempt to return to his prior physical active state, but is continuing to have some difficulty because of the soft tissue injuries, leaving him with lingering symptoms.  The second accident aggravated those injuries and probably extended the time in which they will affect Mr. Bern.  The second accident aggravated the problems he had with his shoulder, neck and back.  The aggravation of his pain and problems he is suffering in attempting to exercise also added to his depression and anxiety.  I accept that on occasion he is anxious about driving and that this results from the second motor vehicle accident, but that it does not prevent him from driving…
[40] I do find, however, that on the balance of probabilities, in other words that it is more likely than not, that those symptoms will be reduced over time…
[44] I find that general damages should be $50,000.00.  I apportion $15,000.00 of that amount to the second accident.  I am satisfied that the second accident aggravated the existing injuries and contributed to some additional injuries.  However, the significant injuries and pain and suffering arise from the first accident.

Personal Injury Claim Dismissed in "No Impact" Collision

I’ve written dozens of times about Low Velocity Impacts where Plaintiffs are injured and compensated despite being involved in accidents with little to no vehicle damage.  But what about no impact collisions, can a Plaintiff be compensated if their vehicle is not struck at all?  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such a claim.
In today’s case (Brooks v. Gilchrist) the Plaintiff was involved in 2 alleged motor vehicle collisions.  She sued for damages.  The first incident  occurred when the Plaintiff was stopped at a red light.  The vehicle next to hers was rear-ended by the defendant.  the Plaintiff “heard a loud sound and felt that she may have been hit as well“.  The Plaintiff claimed she was injured.
At trial the court heard evidence from ICBC estimators who inspected the various vehicles that was “no evidence of any damage or paint transfers or scrapes to the right fron of the (defendant vehicle) or the left back end of the (plaintiff’s vehicle)”.
Mr. Justice Sigurdson went on to find that there in fact was no collision and dismissed the Plaintiff’s claim for the first incident.  In reaching this conclusion the Court provided the following reasons:

[35] My conclusion on the evidence is that, in the first accident, there was no contact at all between the defendant’s vehicle and the plaintiff’s vehicle.  If any contact had been made, it would have been so minor that the vehicles would be touching, but I find, based on the evidence of the witnesses at the scene, that the vehicles were not touching after the collision.  If the vehicles were touching, the plaintiff would have made that observation at the time, rather than simply advancing the theory that the Beynon vehicle must have struck her car, a theory which she maintained until just before the trial.

[36] Further, the absence of any damage or mark or paint transfer or scuffing to the Neon or the right side of the Gilchrist truck supports the view that there was no collision between the Gilchrist vehicle and the plaintiff’s vehicle.  The Gilchrist vehicle had a tow hook at the front and the absence of damage from that also suggests the absence of any collision.  I have considered the possibility that braking might cause the tow hook to be lower, but the absence of any damage from the tow hook is consistent with the fact that there was no collision.

[37] The plaintiff was at best uncertain whether she was involved in an accident.  Perhaps the noise of a collision in her vicinity startled her and made her suspect that her vehicle had been contacted but I find on all of the evidence that it was not.  Her answer on discovery was accurate when she said: “I remember the sound more than the actual, like, feeling of the car moving.”

[38] The plaintiff’s case, at its best, is that there was a possibility that the defendant vehicle made contact with her vehicle.  However, the plaintiff has the burden of proof on that issue on a balance of probabilities, and has fallen far short of meeting that burden.

[39] Accordingly, because there was no collision involving the plaintiff, there can be no liability with respect to the first accident.

It is worth noting that while the above case failed because the court found there was no impact, there is no requirement in law for a Plaintiff to actually be struck by a vehicle in order to have a compensable claim.  This has long been recognized in ‘nervous shock‘ lawsuits.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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