IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130326

Docket: M110230

Registry:
Vancouver

Between:

Sandra Joanne
Davis

Plaintiff

And

David Conroy and Malaspina
Coach Lines Ltd.

Defendants

Before:
The Honourable Mr. Justice Affleck

Reasons for Judgment

[1]            
On May 13, 2009, the plaintiff fell when alighting from a motor coach
owned by the defendant, Malaspina Coach Lines Ltd. and driven by Malaspina’s
employee, the defendant, David Conroy. I am to determine liability only.

[2]            
The plaintiff alleges Mr. Conroy was negligent in failing to take
reasonable care to assist her when she stepped out of the coach and onto a
stool from which she fell. He is also alleged to have failed to give an oral
warning to the passengers “to watch your step”.

[3]            
Malaspina is alleged to be vicariously liable for the negligence of Mr.
Conroy and to be directly liable for, inter alia, failing to train Mr. Conroy
adequately in the use of the stool to assist passengers to disembark safely;
failing to use a stool that was safe; failing to inspect the stool to ensure it
was not a hazard to those who used it; and failing to provide a handrail on the
motor coach that would have prevented the plaintiff from falling.

[4]            
The plaintiff was almost 66 years old at the time of the fall. She has
suffered from rheumatoid arthritis for many years.

[5]            
In May 2009 the plaintiff travelled by ferry and coach to see a friend
in Gibsons on the Sunshine Coast. The plaintiff had taken this trip to see her
friend on many previous occasions and had travelled with Malaspina to do so.

[6]            
On her return from Gibsons, the plaintiff embarked on the coach at a
location in Gibsons. The plaintiff did not use a cane or any other aid to
walking. She boarded the coach without apparent difficulty. Mr. Conroy saw her
board the coach and saw nothing remarkable about her condition. He believed
that she was in her late 50s to mid 60s.

[7]            
The coach travelled to the Langdale Terminal of BC Ferries and when it
boarded the Queen of Surrey to travel to Horseshoe Bay was parked near the bow
of the ship. The passengers left the coach. The plaintiff testified that she
was one of the last to leave. Mr. Conroy testified there were several other
passengers who disembarked after the plaintiff.

[8]            
The coach was manufactured in the late 1970s and Colleen Ismail, a
witness for Malaspina, believed the coach had been in service with Malaspina
since about 1980.

[9]            
Passengers alighting from the coach left from a door on the right front
and descended four stairs. To the right of the stairs there was a handrail. The
door was hinged on its left and opened outwards. There was no handrail on the
inside of the door. A photograph of the open door of a different coach, not
owned by Malaspina, was placed in evidence by the plaintiff. The photograph
shows a handrail affixed to the inside of the door of that other coach. The
handrail is set at about a 45 degree angle with the upper end placed so that a
person descending could reach the top of the handle as her descent began.

[10]        
Ms. Ismail is a long serving senior employee of Malaspina. She was
responsible for purchasing the stool from which the plaintiff fell. She was
shown the photograph of the railing on the door of the other coach. It was
suggested to her that it would have been safer for passengers on the Malaspina
coach if a similar handrail had been installed. Ms. Ismail’s response was that
so far as she knew the rail would have been installed when the coach shown in
the photograph was manufactured. Ms. Ismail commented that Malaspina did not
design the coach on which the plaintiff travelled. It was also proposed to Mr.
Conroy in cross-examination that Malaspina could have made its coach safer by
installing a handrail on the door. Mr. Conroy, quite properly in my opinion,
responded that he had no means of knowing what mechanisms were installed within
the door and it would not be appropriate for Malaspina to attempt to attach a
railing which had not been attached by the manufacturer.

[11]        
The evidence does not persuade me that a handrail on the door would have
prevented the plaintiff from falling. She had often descended stairs on a coach
of similar design to the coach she travelled on in May 2009 without incident.
The lack of a handrail on the door does not explain the fall. Nor am I
persuaded that Malaspina demonstrated a failure to take reasonable care by
retaining in service a coach without a handrail on the door. No evidence was
offered that the coach driven by Mr. Conroy on May 13, 2009, was not
reasonably safe for its intended purpose. The evidence disclosed that like the
plaintiff, large numbers of other passengers, over many years, travelled on that
coach without any report of injury caused by the absence of a handrail on the
door.

[12]        
The plaintiff testified that she heard no cautionary words spoken by
Mr. Conroy to passengers who were about to disembark, to the effect that
they should watch their step. It was suggested to Mr. Conroy, in cross-examination,
that he had not cautioned the passengers in this way before they disembark on
the ferry, as the company manual required. Mr. Conroy insisted he had done so
while driving and approaching the ferry terminal.

[13]        
In my opinion whether or not Mr. Conroy told the passengers to watch their
step as they disembarked had nothing to do with to the plaintiff’s fall. There
were signs inside the coach saying “watch your step”, one of which was printed
in large letters on the inside of the door. More importantly the plaintiff
testified she was concerned and even had a “fright” when she saw the stool on
the deck of the ferry as she began to descend the stairs of the coach. The
plaintiff needed no warning to watch her step. Her rheumatoid arthritis made
her wary of stairs. Mr. Conroy had no reason to know of the plaintiff’s medical
condition.

[14]        
Before any of the passengers disembarked Mr. Conroy placed the stool
immediately adjacent to the bottom step of the exit from the coach. Without the
stool the last step onto the ferry deck would have been too high for some
passengers. With the stool in place a passenger would step down approximately
six inches. It was not suggested that was too great a distance for the
plaintiff to step down.

[15]        
The stool was usually kept on the coach and before passengers disembarked
the driver would place the stool in its proper location at the foot of the
stairs and then stand near the stool to offer assistance to passengers if
necessary. Mr. Conroy followed this procedure. He has long experience dealing
with passengers with mobility difficulties. I reiterate he had no reason to
believe the plaintiff had any greater mobility difficulties than any other
person of her apparent age.

[16]        
The plaintiff had not previously ridden on a Malaspina coach driven by
Mr. Conroy, but testified he did what other drivers had done when assisting
passengers and observed that “they are all very good”. That evidence does not
suggest Malaspina’s training of its drivers to assist passengers was deficient.

[17]        
The stool had a flat surface with material to enhance friction. It had
four legs angled away from the stool when in use, and when not in use they were
folded under the stool. The feet of the stool had rubber or plastic tips to
increase friction. The stool was somewhat narrower than the bottom step on the
coach. The plaintiff testified the stool had been placed off centre to the
right as she looked down at it when she began her descent. Despite her concern
and even “fright” she said nothing to Mr. Conroy as she descended the stairs.

[18]        
The plaintiff maintained her hold on the handrail to her right as she
descended the stairs and on reaching the bottom step of the coach, put her
right foot on the top of the stool. There is no suggestion her foot slipped on
the stool or that it was not firmly placed on the stool. She testified that her
shoe did not overlap the edge of the stool. If the stool was not centred with
the bottom step of the coach that does not provide an explanation for the fall.
She then intended to place her left foot on the stool. Her evidence is that she
was looking at the stool. She began to place her left foot on the stool and Mr.
Conroy extended his right hand towards her. Her evidence is that he took hold
of her left elbow. The plaintiff testified that as he took her elbow she began
to fall forward onto her hands and knees on the ferry deck. She testified Mr.
Conroy said “oh my god I thought I had you but I guess I didn’t”. The plaintiff
testified that “it seemed to me the stool slipped” and that the ferry deck was
wet with rain water.

[19]        
Mr. Conroy’s description of the fall and its surrounding circumstances
is somewhat different. He testified that he placed the stool properly and, as
is his practice, tested its stability with his foot. He said he did so, not
because of any concerns about stability, but because that is simply his habit.
He denied the deck was wet. Several passengers left the coach and then the
plaintiff came down the stairs herself. As she reached the bottom of the
stairs, Mr. Conroy described her as looking for the location of the elevator on
the ferry, and that she asked him about the location of the elevators. The
plaintiff denied she asked about the elevator and insisted she was looking at
the stool as she placed her right foot on it and then attempted to do the same
with her left. Mr. Conroy testified that he extended his right hand towards the
plaintiff as she reached the bottom of the stairs. He denies he took the
plaintiff’s left elbow in his hand. He said he usually extended his hand to
women beyond a certain age, which age he did not specify, but which obviously in
his mind applied to the plaintiff. He testified that he did so as “a courtesy”
but it was clear that he considered some women to need greater assistance than
others. Mr. Conroy testified that he extended his right hand and at the same
time the plaintiff extended her left hand towards his right hand. Their hands
briefly touched as the plaintiff began to fall. Until that moment for both the
plaintiff and Mr. Conroy, her descent down the stairs and onto the stool had no
features that distinguished it from any similar occasion.

[20]        
In my opinion it made no difference to the unfortunate outcome whether
Mr. Conroy attempted to take the plaintiff’s elbow or her hand. In cross-examination
it was suggested to Mr. Conroy that the gesture of extending his hand was a
“come to me” type of gesture that lured the plaintiff into moving towards him,
thereby causing her to lose her balance. In my view, the evidence does not support
that proposition.

[21]        
The law imposes a duty on persons in Mr. Conroy’s position to take
reasonable care to avoid injury to a passenger. Mr. Conroy met that standard.
If he had grasped the plaintiff’s elbow more firmly than she testified he did, there
is no reason to believe that would have prevented her from falling. The same
can be said about taking her hand if his recollection is correct. The fall
might have been prevented if Mr. Conroy had stepped forward and taken a firm
hold on the plaintiff with both hands, but he could not reasonably have
foreseen she might lose her balance in the way she did and therefore he could
not reasonably foresee that he should take extra, more forceful precautions, in
guiding the plaintiff from the coach.

[22]        
The plaintiff testified that it seemed to her that the stool slipped and
perhaps this explains why she fell. The plaintiff does not actually say the
stool slipped. She says it “seemed” to have done so. This perception was
apparently reinforced both by her recollection that there was rain water on the
deck and that after her fall the stool was no longer where Mr. Conroy had
initially placed it. An equally plausible explanation for the change in
position of the stool, is that it was pushed by the plaintiff when she fell. I
cannot find the fall was caused by the stool slipping.

[23]        
I will add that even if the stool slipped, that would not necessarily
impose liability on the defendants. In my view there is nothing deficient in
the design of the stool. It had been used for some time without incident. It
had been used by Mr. Conroy on multiple occasions. Mr. Conroy had no
experience of the stool slipping when it was used by other passengers on that
day or any other day. Moreover, I am not satisfied the ferry deck was slippery.
The plaintiff on walking away after falling found that it was not slippery. There
may have been some rain water on the deck but if there was that does not tell
me the stool slipped.

[24]        
Actionable negligence is not proven simply because an event happens that
causes a person to be injured. That person must prove that the defendant could
reasonably have foreseen that a breach of duty by the defendant to take
reasonable care could cause injury to that person. I can detect no breach of
duty by Mr. Conroy or by the defendant Malaspina.

[25]        
In cross examination the plaintiff suggested to Mr. Conroy that he was
fabricating his evidence. In argument the same suggestion was made. This
suggestion arose from Mr. Conroy’s two written reports to his employer. The
plaintiff submits the first report was provided late and was deceptive by
omitting damaging details.

[26]        
I do not accept that characterization of Mr. Conroy’s evidence. In my
opinion his reports were late because immediately after the plaintiff’s fall
Mr. Conroy had been assured that she had experienced no significant injury, and
when a week later he prepared his first report he attempted to remember the
details of an incident that had happened quickly and without warning and which
immediately afterwards the plaintiff had assured him had not caused her any
injury. Lapses in recollection are not indicative of a witness who is
deliberately distorting the truth. In fact they are often indicative of a
witness who is attempting but failing to recall events accurately. I have no
doubt the plaintiff also failed to remember accurately every detail of the
circumstances of her fall. I am satisfied that both parties gave their evidence
while attempting to tell the truth as best they could.

[27]        
In my opinion, the plaintiff lost her balance and fell without
negligence on the part of either defendant.

[28]        
The action is dismissed with costs.

“The Honourable Mr.
Justice Affleck”