Tag: translink

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 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.

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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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