IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130625

Docket: M104364

Registry:
Vancouver

Between:

Yin
Kung Wong

Plaintiff

And:

South
Coast British Columbia Transportation
Authority doing business as Translink, Coast Mountain Bus
Company Ltd., and Kristopher Pinnell

Defendants

Before:
The Honourable Madam Justice J. A. Power

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff Yin Kung Wong (“Ms. Wong”) fell and broke her hip, while
riding a city bus in Vancouver on August 31, 2009.  She alleges that the bus
accelerated abruptly and without warning before she had a chance to be seated. 
She was 81 years old at the time of the incident.  Ms. Wong seeks damages for pain
and suffering, future care and special damages.

[2]            
The bus was driven by the defendant Kristopher Pinnell and was operated
by South Coast British Columbia Transportation Authority doing business as
Translink, Coast Mountain Bus Company Ltd.  The defendants deny that any
incident which could be characterized as abrupt or unexpected occurred.  They
deny any allegation of negligence and in the alternative argue that Ms. Wong
was contributorily negligent.

[3]            
The following issues arise in this case:

a)       Whether
the injuries suffered by Ms. Wong were caused by the negligence of Mr. Pinnell
and  if so;

b)       Whether
Ms. Wong was contributorily negligent;

c)       The
amount of damages (if any) that should be awarded.

[4]            
As part of the analysis of the issues, the fact finding process is
important since there are two distinct accounts of how the accident occurred. 
The first version is the account of the incident by the plaintiff and her
husband Robert Tang.  The defence argues in contrast that the version of the
defendant Mr. Pinnell is supported by the independent witness Mr. Kirkey and
should be accepted.

[5]            
In undertaking the fact-finding process, I must keep in mind the
guidance from the Court of Appeal in Faryna v. Chorny, [1952] 2 D.L.R.
354 (B.C.C.A.) at para.11, that I must consider the preponderance of the
probabilities evident in the circumstances and that I must consider the
evidence as a whole.  I must also keep in mind that truthfulness and
reliability are not necessarily synonymous which is particularly important in a
case like this since it is my view that all of the witnesses were doing their
best to be truthful.

BACKGROUND FACTS

Liability

Ms. Wong

[6]            
Ms. Wong and her husband Robert testified with the aid of a Cantonese
interpreter.  Ms. Wong was 84 years of age at the time of trial and 81 years of
age at the time of the fall.  She was an articulate woman who appeared younger
than her 84 years.  Ms. Wong testified that everyone told her that “… she
didn’t look 80”.  I would agree, however it is clear from her appearance that
she is a senior citizen.

[7]            
Ms. Wong was an experienced rider of the bus system in Vancouver.  She
had an annual pass and rode the bus about three times per week.  In her
testimony, Ms. Wong noted that in twenty to thirty years of riding the bus she
had never experienced a similar event nor suffered any injury.

[8]            
On the day of the fall, August 31, 2009, Ms. Wong was coming from
Richmond where she had dim sum with her husband and her younger sister.  She
was travelling with both her husband and her sister at the time of the
incident.  She had taken the Canada Line from Richmond and exited at the City
Hall stop located at the southeast corner of West Broadway and Cambie in
Vancouver.

[9]            
Ms. Wong crossed the street to the northwest corner of the intersection
and boarded a double length 99 B-line bus.  She boarded through the rear doors
of the bus.  She acknowledged in cross-examination that she was aware that the
best way to access courtesy seats reserved for elderly and disabled passengers
was to enter the front of the bus.  As she entered the back doors, she assisted
her husband in getting settled in a seat close to the door.  She described the
bus as being quite empty with about twenty people on the bus.

[10]        
Once her husband was seated, Ms. Wong took her husband’s ticket book to
the front of the bus to get his ticket time stamped.  Since Ms. Wong and her
sister had passes, the passes did not need to be stamped.  Ms. Wong described
the bus as absolutely stationary when she went to the front.  As she stamped
her husband’s ticket, Ms. Wong checked with the bus driver that she could get
off at MacDonald Street.

[11]        
Ms. Wong turned to go back to her husband, and took about two steps,
when without warning to her the bus driver pulled out into traffic in an abrupt
motion.  Ms. Wong did not have sufficient time to return to her seat prior
to the bus entering traffic.  She was not holding on to anything when she
fell.  Ms. Wong fractured her hip in the fall.  Various passengers called out
to the bus driver to stop the bus and he stopped the bus which was proceeding
westbound on Broadway.  As a result of the braking Ms. Wong slid forward from
the point where she fell to the front of the bus near the fare box.

[12]        
Ultimately an ambulance attended.  Ms. Trinkhaus, a paramedic testified
at trial.  She confirmed that the ambulance was dispatched at 3:20 and arrived
at Broadway and Ash where the bus was stopped almost immediately.  That
location was less than one city block from the location where Ms. Wong
boarded.  A stamped ticket was retrieved from the floor of the bus and marked
as an exhibit at trial.  It is stamped at 3:13.  Ms. Wong was taken to VGH and
surgery was done on September 2, 2009.

Mr. Tang

[13]        
Ms. Wong’s husband Robert Tang testified at trial.  He confirmed that
after they boarded the bus, his wife went forward to get his ticket stamped
prior to the bus being put in motion.  He was 95 years at the time of trial. 
In my view, there was no clear evidence that can assist in determining how his
wife fell.  It was unclear whether he was testifying from his own memory or was
testifying about the incident as described to him by his wife.  It does not
appear from the evidence that he was in a position to see anything in any
event.

Jeff Kirkey

[14]        
Mr. Kirkey is 41 years old and was presented as an independent witness
by defence.  He was sitting at the back of the bus when he saw an elderly Asian
lady get up and move towards the front of the bus.  He recalled ten to twenty
passengers on the bus.  He did not see the elderly lady board the bus.  He said
the bus was “travelling as far as I remember” meaning that the Asian lady was
moving towards the front of the bus while the bus was in motion.  Mr. Kirkey
observed or felt a jerk on the bus that he did not know how to describe at
trial.  When asked in direct examination he described it as the kind of jerk
that a travelling passenger would ordinarily expect.  The passenger fell while
making her way down the aisle.

[15]        
When Mr. Kirkey observed the lady fall, he moved to the front of the bus
to assist.  He said that everyone else got off the bus and that he wrote his
contact information on a transfer as a possible witness.

[16]        
In cross-examination Mr. Kirkey indicated that he had no idea whether
the lady had her ticket stamped before she fell.  He recalled a strong jerk
prior to the fall that could have occurred for a number of reasons.  He did not
know whether the jerk was strong enough to knock over the women if she was
hanging on.  He also did not recall telling a female paramedic that the driver
had swerved to avoid an accident nor did he recall that the driver had rebutted
his account in front of the paramedic.  He acknowledged that both of those
events could have occurred.

Kristopher Pinnell

[17]        
Mr. Pinnell was the bus driver operating the bus at the time of the incident. 
He has worked for Coast Mountain Bus Company since 2007 and was hired after a
challenging hiring process which included a written application and video
test.  He had been driving since he completed his training in April 2007.

[18]        
On the day of the incident Mr. Pinnell had worked a split shift and had
just recommenced his shift at 2:37.  He picked up his bus in the yard and did a
pre-trip inspection for safety.  He did not note any problems with steering,
acceleration or braking of his bus.

[19]        
Mr. Pinnell described his usual practice with respect to visual checks
prior to setting the bus in motion from Broadway and Cambie.  He indicated that
if a person was standing, or visibly disabled for any reason he would ask the
person to safeguard himself or sit down.

[20]        
On the day of the incident, Mr. Pinnell indicated that he followed his
usual practice and did not note anyone standing so he proceeded into traffic. 
He described being in Lane 2 when he suddenly heard a thud after he crossed
Broadway and Ash.  He looked down and saw a lady laying on the floor.  He had
not seen that lady prior to that.  He testified that there was nothing out of
the ordinary in terms of the bus operation at the time of the “thud”, however
he had taken his foot off the accelerator.

[21]        
Mr. Pinnell testified that as soon as he heard the “thud” and noted the
lady on the floor he stopped the bus, applied the parking brake and tried to
assist the fallen passenger.  It was clear that the lady was vocalizing that
she was unwell and another lady was assisting her.  He took steps to call via
the transit communication system and returned to the fallen passenger.

[22]        
While he was waiting for Emergency Health Services (EHS) he had bus
passengers demanding that he let them off.  He did not open the doors until the
EHS arrived.  He described “an ocean of people” staring at him.  He then moved
the bus forward to curbside.  He did not obtain any names of possible witnesses
to the incident and described that issue in cross-examination as “secondary”.

[23]        
Mr. Pinnell was cross-examined extensively on an incident report which
he filled out for his employer the day after the incident (Exhibit 14).  A
number of inconsistencies between his evidence at trial, and the incident
report were brought out.  Mr. Pinnell stated that he thought the bus was at
least three-quarters full at trial, even though he acknowledged that he
estimated 10 passengers on the incident report.  He had ticked the box on the
incident report indicating the passenger was holding on, even though he stated
at trial that he had never seen her.  Mr. Pinnell testified that he did not
tick the box that the passenger was elderly because he did not see her that
way.  He ticked off the box indicating that Ms. Wong was carrying items, even
though he did not know if the items on the floor were hers.

[24]        
In cross-examination, Mr. Pinnell denied trying to change the witness
Mr. Kirkey’s version of the incident, but acknowledged that he tried to
discourage Mr. Kirkey from trying too hard to help by speculating as to
what happened.  He also conceded that he ticked the box “seated load”, even
though it is clear that Ms. Wong was not seated at the time of the fall.  He
also described the notation in the incident report indicating the accident
location as between Heather/Willow as an unfortunate error.

[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.

[26]        
Finally, and significantly, in his description of the incident in the
incident report Mr. Pinnell stated “I saw a women out of the corner of my eye
come up to use the fare box” whereas at trial he stated that just past Broadway
and Ash he “heard a thump next to me and saw a lady laying on the floor” and
that the first time he saw her was when he looked down and saw the woman laying
on the floor.  He stated at trial that there was no change in the bus speed at
the time of the fall and that the thump happened independent of any movement of
the bus.  He was not able to explain why in the incident report he had ticked
the box “changing speed”.

[27]        
It is clear from the evidence at trial that the impact of the incident
both at the time and subsequently has been significant for Mr. Pinnell.  In
cross-examination he confirmed that he felt he was facing termination at the
time of the fall but stated that concern related to his being the victim of two
prior assaults.  Mr. Pinnell confirmed that after the incident he called a
union steward because he was alone and that the union steward was also a
friend.  He stayed on the phone with the union steward even after his
supervisor arrived because he was more comfortable talking to his friend.

ANALYSIS

[28]        
Having considered all of the evidence relating to the background to the
incident, I have determined that I prefer the evidence of Ms. Wong over the
evidence of Mr. Pinnell and Mr. Kirkey as to how the fall occurred.  As I have
indicated, I am of the view that all of the witnesses were attempting to be
truthful in their evidence.  However, I accept the plaintiff’s counsel
submissions that Ms. Wong was in the best position to know what occurred prior
to her fall.  It is my view that her version of the incident accords with
common sense and with the preponderance of the probabilities evident from the
evidence at trial.  There is no evidence to suggest that the fall occurred for
any medical reason as suggested by the defence, and that the only explanation
that makes sense is that there was an abrupt acceleration into traffic which
was not expected by Ms. Wong.

[29]        
The defence submits that Mr. Pinnell’s evidence is corroborated on all
material points, however there are a number of difficulties with the defence
evidence of Mr. Pinnell and Mr. Kirkey.  It is my view that Mr. Kirkey’s
evidence is not of great assistance because of his opportunity to observe and his
attention is only drawn to Ms. Wong after the fall.  In addition, Mr. Kirkey’s
evidence is inconsistent with Mr. Pinnell’s on a significant point.  Mr.
Pinnell stated that there were no sudden movements on the bus which could
explain the fall, whereas Mr. Kirkey stated there was a sudden jolt on the bus
and then Ms. Wong fell.  It is my view that Mr. Kirkey’s evidence is more
consistent with the evidence of Ms. Wong because she describes the incident as
sudden acceleration followed by sudden braking when the passengers called out
to Mr. Pinnell.  That is when she slid forward to the fare box.

[30]        
It is my view that Mr. Kirkey was not paying attention to what Ms. Wong
was doing prior to the fall, nor was there any reason for him to be paying
attention.  It is not clear from his evidence what the cause of the sudden jolt
was.  It was Ms. Wong’s fall which drew his attention to the incident.  I
am of the view that while Mr. Kirkey was trying to be helpful, his evidence is
not sufficiently reliable to accord it any weight.

[31]        
Similarly, in assessing Mr. Pinnell’s evidence, there are numerous
internal inconsistencies that arose at trial in direct and cross-examination,
and inconsistencies between the trial evidence and what Mr. Pinnell recorded in
the incident report.  While some inconsistencies in an incident such as this
can be expected, there are so many inconsistencies present that I cannot place
a great deal of weight on Mr. Pinnell’s evidence.  As I have indicated, I am
not suggesting that Mr. Pinnell deliberately attempted to mislead the court. 
However, his evidence is limited because in large part he is reconstructing the
event after it occurred.  It is my view that his evidence was based more on his
usual practice than any independent recollection of the incident.  It is also
clear that Mr. Pinnell was shaken and upset from the incident and other
passenger’s reaction to the delay which may have affected his recollection of
what occurred.

[32]        
Accordingly, I make the following findings based on the evidence at
trial:

1.       Ms.
Wong boarded double length 99 B-line bus from the rear doors.  Ms. Wong was an
experienced bus rider and she knew the best way to access seats for elderly and
disabled passengers was to enter via the front doors.

2.       Once
she had her husband seated she proceeded to the front of the bus to have her
husband‘s ticket stamped.

3.       The bus
was stationary when Ms. Wong proceeded to the front of the bus.

4.       In
addition to stamping her husband’s ticket, she asked the bus driver Mr. Pinnell
whether the bus stopped at MacDonald Street.

5.       Ms.
Wong turned and had taken about two steps from the fare box when the bus driver
pulled into Broadway traffic in an abrupt motion.

6.       Ms.
Wong fell and passengers called out to alert Mr. Pinnell to the incident.

7.       Mr.
Pinnell abruptly braked and Ms. Wong slid forward to the fare box.

8.       Ms.
Wong fractured her hip in the incident.

9.       Ms.
Wong was not holding onto anything at the time that she fell.

10.     The bus
stopped near Broadway and Ash, approximately one block from where the bus was
boarded by Ms. Wong.  Mr. Pinnell stopped the bus after passengers alerted his
attention to the fall.

Legal Principles – Liability

[33]        
In Prempeh v. Boisvert, 2012 BCSC 304, Dardi J. provided a
helpful summary of the standard of care owed by a public carrier.  In that
case, the plaintiff had just got up from her seated position in order to
prepare to disembark the bus.  The bus driver in that case made a “hard stop”
and the plaintiff fell.

[34]        
At paras. 15 – 20 the court stated:

[15]      The principles that
govern the disposition of this case are uncontroversial.  The reasonable
foreseeability test informs the analysis of liability.  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.

[16]      It is well-settled on the authorities that the
standard of care imposed on a public carrier is a high one.  However the
principle to be derived from the authorities is that the standard to be applied
to the bus driver is not one of perfection nor is a defendant bus driver
effectively to be an insurer for every fall or mishap that occurs on a bus: Patoma
at para. 7.

[17] Day v. Toronto Transportation Commission,
[1940] S.C.R. 433, is the seminal case dealing with the liability of public
carriers.  The plaintiff, a passenger in a street car owned by the defendant,
while standing and picking up a parcel in preparation to disembark, was thrown
to the floor and injured by the sudden application of the emergency brake.  The
articulation of the standard of care was stated as follows by Hudson J. at 441:

 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 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.

[18]      The principles articulated in Day have been
interpreted by the courts in this province as endorsing the following
analytical approach — once a passenger on a public carrier has been injured in
an accident a prima facie case of negligence is raised and it is for the
public carrier to establish that the passenger’s injuries were occasioned
without negligence on the part of the defendant or that it resulted from a
cause for which the carrier was not responsible: Planidin v. Dykes, [1984]
B.C.J. No. 907 (S.C.); Visanji v. Eaton and Coast Mountain Bus Co. Ltd.,
2006 BCSC 656 at para. 26.

[19]      However it must be noted that in Fontaine v.
British Columbia (Official Administrator), [1998] 1 S.C.R. 424, 46 B.C.L.R.
(3d) 1, Major J. in discussing the doctrine of res ipsa loquitur in the
context of a single car accident, observed as follows:

 [27]      It
would appear that the law would be better served if the maxim was treated as
expired and no longer used as a separate component in negligence actions. 
After all, it was nothing more than an attempt to deal with circumstantial
evidence.  That evidence is more sensibly dealt with by the trier of fact, who
should weigh the circumstantial evidence with the direct evidence, if any, to
determine whether the plaintiff has established on a balance of probabilities a
prima facie case of negligence against the defendant.  Once the
plaintiff has done so, the defendant must present evidence negating that of the
plaintiff or necessarily the plaintiff will succeed.

[20]      In Visanji, the court after canvassing the
pertinent authorities provides the following helpful formulation of the
principles which govern the determination of negligence against a public
carrier:

 [29]      Whether the burden
upon a public carrier in cases of injury or accident sustained by a passenger
can be referred to as the shifting of the burden as in Day, or a matter
of inferences to be drawn from the evidence once the plaintiff has established
a prima facie case of negligence against the defendant carrier as
articulated in Fontaine, it is for the defendant to present evidence to
answer, or be found negligent: Nice v. Calgary (City) (2000), 83 Alta.
L.R. (3d) 1, 2000 ABCA 221, at para. 46, leave to appeal to S.C.C. ref’d,
[2000] S.C.C.A. No. 483 (S.C.C. Mar. 29, 2001).

[35]        
In Prempeh, the court found that the bus driver’s sudden and
vigorous application of the brakes in context established a prima facie
case of negligence (para. 24) and the court was not satisfied that the
defendants established that the bus driver conducted himself in a reasonable
and careful manner consistent with the high duty of care imposed on those
engaged in public transit (para. 29).

[36]        
In Patoma v. Clark, 2009 BCSC 1069, the 68 year old plaintiff
fell when the defendant bus driver put the bus in motion before the plaintiff
was seated.  The court in that case found that there was nothing negligent
about the bus driver’s failure to warn Mr. Patoma that the bus was about to
start.

[37]        
In so finding the court said at paras. 16 and 17:

[16]      There is no magic portal one passes through at age
65 that transforms a person from able-bodied to frail elderly.  Mr. Patoma is
one of those fortunate people who remains fit and healthy well past 65.  As
noted by Mr. Justice Barrow in McNaught v. Alblas, 2006 BCSC 535, [2006]
B.C.J. No. 764, in addressing a similar case involving a fall on a bus of a
77-year-old plaintiff at para. 30:

 …
[T]here was nothing about the plaintiff that would put a reasonable bus
operator on notice that it was necessary to take any particular cautions other
than those extended to every passenger prior to putting the bus in motion.  The
mere fact that she was elderly is not determinative of the issue.  Many elderly
people are able to manage safely on a bus without assistance, or without the
driver being required, in order to exercise reasonable care, to allow them to
be seated before putting the bus in motion.

He went on at
paragraph 35:

 There
was nothing to draw the attention of the driver to the need to take any
particular precautions in relation to the plaintiff.  I come to that conclusion
recognizing that she was obviously elderly.  She was, however, obviously, also
spry and reasonably fit.

[17]      The policy that
requires bus drivers to refrain from setting the bus in motion until a
passenger is seated, or until they have been given a warning, is directed at
passengers whose ability to hold on and remain upright is impaired by physical
disability, which can include the frail elderly, or people who are inebriated,
or carrying burdens, such as children or parcels.  It is the degree of
impairment which is determinative, not simply the age of the passenger.

[38]        
In my view, the Patoma case is distinguishable from the case at
bar.  Although I find that Ms. Wong was fit and healthy for her 81 years, she
was nevertheless clearly a senior citizen with some mobility impairment by
reason of her advanced years.  In addition, in this case, Ms. Wong had just
prior to the fall spoken to Mr. Pinnell and had sought his assistance in
determining whether the bus stopped at MacDonald Street.  She had just left the
fare box and was returning to her seat when Mr. Pinnell abruptly pulled out
into traffic.  In these circumstances, Mr. Pinnell should have had a heightened
awareness that Ms. Wong was not yet in her seat.

[39]        
In McNaught v. Alblas, 2006 BCSC 535, the court stated at paras.
3 and 4:

[3]        The parties do not disagree as to the applicable
law.  It is appropriate to first note the comments of Hudson J. in Day v.
Toronto Transportation Commission, [1940] 4 D.L.R. 484 (S.C.C.) where he
wrote:

 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]        The most recent statement of the law from the
Court of Appeal in this province is found in Wang v. Harrod [sic] (1998),
48 B.C.L.R. (3d) 199 [Wang].  The law as there explained was
conveniently summarized by Humphries J. in Lawson v. British Columbia
Transit Authority, [2002] B.C.J. No. 2297, 2002 BCSC 1438 [Lawson]. 
There at para. 18 she said this:

 … 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.

[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.

Contributory Negligence

[41]        
I turn now to the question of whether or not the plaintiff was
contributorily negligent.  As noted in Prempeh v. Boisvert:

[32]      The essential inquiry
is whether the plaintiff failed to take reasonable care for her own safety and
whether the failure was one of the causes of the incident: Bradley v. Bath,
2010 BCCA 10 at para. 27.

[42]        
Each case must be considered on its own facts and in this case I accept
the defendant’s submission that it was negligent of Ms. Wong, as an experienced
bus rider, to enter via the rear doors when she knew that she required
directional assistance and she knew that she needed to validate her husband’s
ticket.  Had she entered via the front doors, Mr. Pinnell would have been more
aware of her presence and of her age and circumstances.  It was also negligent
for Ms. Wong not to hold onto the many bars and seat holds available to her as
she returned to her seat.  I find it probable that holding onto something would
have prevented the fall or reduced the injury.

[43]        
However, it is also my view that the plaintiff was entitled to expect
some warning of the need for caution in light of the imminent departure of the
bus.  In the circumstances, the degree of negligence of Mr. Pinnell as the bus
driver was greater than that of Ms. Wong.

[44]        
I am of the view that the degree of negligence is similar to Wang,
where the trial judge found the defendant bus driver 75% liable for the
injuries suffered and the plaintiff 25%.  In that case, the plaintiff stood up
at a red light to remove her coat and fell when the light changed and the
defendant put the bus in motion.

[45]        
In all of the circumstances of this case, I apportion liability 75% to
the defendant and 25% to the plaintiff.

DAMAGES

[46]        
Ms. Wong’s general practitioner Dr. Cham-Wah Yuen testified at trial and
was cross-examined.  In his medical report dated November 29, 2010 (Exhibit 6),
Dr. Yuen summarized Ms. Wong’s injury as follows:

In summary, Ms. Wong apparently
fell in a bus and sustained fracture to the neck of her right femur.  She had
received surgery by Dr. Broekhuyse, an orthopedic surgeon.  She recovered quite
uneventfully, received rehabilitation program in Holy Family Hospital and
received further home physiotherapy after discharge from Holy Family Hospital. 
She had some pain in her right hip from January to March of 2010 and required
some Tylenol #3 tablets for pain control.  She now walks with a cane and has
been quite mobile.  Her prognosis is good though she may have some pain in the
fracture site from time to time.  She needs to use a cane to give support on
walking.  Apparently she can perform her usual housework.

[47]        
In her letter dated March 5, 2012 (Exhibit 8), Theresa Wong,
Occupational Therapist, summarized the impact of the accident on Ms. Wong’s
life:

At the time of the bus incident, Ms. Wong was living in the
Chinese Freemason Manor.  It was a seniors’ complex that offered no additional
support services.  Ms. Wong was independent with personal care, meal
preparation, grocery shopping, and house cleaning.

Following the incident, Ms. Wong
presents with limitations in functional mobility that affect her ability to
complete daily activities.  She had hired assistance for meal preparation and
cleaning shortly following her discharge from the rehabilitation facility.  She
subsequently moved into the Icelandic Care Home, a care facility where meals
and weekly cleaning services are provided.  Ms. Wong’s relocation to this
facility would appear appropriate given her limitations in functional mobility.

[48]        
Dr. Horlick is an expert orthopedic surgeon.  He prepared a report which
summarized the injury and noted that he would not anticipate “… that Mrs. Wong
would require more extensive assistance with her mobility needs or with basic
activities of daily living as a direct consequence of her right hip fracture or
residua of same.”

[49]        
At the time of the fall Ms. Wong was in good health.  She lived a very
active life and was able to walk without aids, swim two to three times per
week, and shop for groceries and other necessities.  She travelled frequently
and in the words of her son,  Samson Wong was “sociable”, “a very busy lady”
and had “lots of friends”.

[50]        
It is clear from all of the evidence including the evidence of Samson
Wong, that the impact of the fall was significant.  Samson Wong indicated that
his care for his mother had increased “about ten times more than before” and
that the impact had not just impacted her physically, but mentally.  She can no
longer travel independently and walks with a cane.

General Damages

[51]        
Ms. Wong sought an award of $95,000 to compensate her for pain,
suffering and loss of amenities.  The defence argues that an appropriate amount
for pain and suffering is in the range of $60,000 to $70,000.

[52]        
I was referred to Irvine v. Cara Operations Ltd., 2002 BCSC 1581,
in which the 84 year old female plaintiff was awarded $60,000; Simon v.
Strata Plan KAS2093, 2007 BCSC 1592, in which the plaintiff was awarded
$100,000 (discounted to $50,000 for contributory negligence); and Etson v.
Loblaw, 2010 BCSC 1865, where the 76 year old plaintiff was awarded
$90,000.  In Etson, the court referenced the golden years doctrine that
for a person in advancing years an impairment in movement is even more profound
since as one advances in age one’s pleasures and activities become more limited
so any further limitation becomes even more serious (para 66).  I was also
referred by the defence to Falconer v. Le, 2003 BCSC 1434.

[53]        
Having considered the general principles, the cases referenced and the
non-exhaustive list of factors in Stapley v. Hejslet, 2006 BCCA 34 (para.
46),  I am of the view that an award for general damages of $90,000 is
appropriate in this case.  That amount should be discounted by 25% for
contributory negligence resulting in a sum of $67,500.

Cost of Future Care

[54]        
In O’Connell v. Yung, 2012 BCCA 57, the court noted the approach
to be taken in determining future care costs at paras. 55 and 56:

[55]      The law is settled as to the appropriate approach
to be taken in assessing future care costs.  In Krangle (Guardian ad litem
of) v. Brisco, 2002 SCC 9 at paras. 21-22, [2002] 1 S.C.R. 205, referred to
by the trial judge, the Court articulated the test:

 [21]      Damages
for cost of future care are a matter of prediction.  No one knows the future.
Yet the rule that damages must be assessed once and for all at the time of
trial (subject to modification on appeal) requires courts to peer into the
future and fix the damages for future care as best they can. In doing so,
courts rely on the evidence as to what care is likely to be in the injured
person’s best interest.  Then they calculate the present cost of providing
that care and may make an adjustment for the contingency that the future may
differ from what the evidence at trial indicates.

 [22] The
resulting award may be said to reflect the reasonable or normal expectations of
what the injured person will require.  Jane Stapleton, “The Normal
Expectancies Measure in Tort Damages” (1997), 113 L.Q.R. 257, thus suggests, at
pp. 257-58, that the tort measure of compensatory damages may be described as
the “’normal expectancies’ measure”, a term which “more clearly describes the
aim of awards of compensatory damages in tort:  namely, to re-position the
plaintiff to the destination he would normally have reached … had it not been
for the tort”. The measure is objective, based on the evidence.  This
method produces a result fair to both the claimant and the defendant.  The
claimant receives damages for future losses, as best they can be ascertained. 
The defendant is required to compensate for those losses.  To award less than
what may reasonably be expected to be required is to give the plaintiff
too little and unfairly advantage the defendant.  To award more is to give the
plaintiff a windfall and require the defendant to pay more than is fair.

[Emphasis added.]

[56]      Further, as Athey v.
Leonati, [1996] 3 S.C.R. 458 at para. 27, makes clear, “[a] future or
hypothetical possibility will be taken into consideration as long as it is a
real and substantial possibility and not mere speculation”.

[55]        
In this case, I am satisfied based on the report and evidence of Theresa
Wong, along with all of the evidence, that the plaintiff has established future
care costs on the balance of probabilities.  Specifically, I am of the view that
Ms. Wong moved into the Icelandic Care Home that provided increased support
levels as a direct consequence of the accident.  I am  satisfied that there is
an evidential link between Theresa Wong’s recommendations and the accident.  I
prefer Theresa Wong’s evidence where it conflicts with Dr. Yuen and Dr. Horlick
since Ms. Wong’s report and recommendations specifically considers the needs of
Ms. Wong post‑accident.

[56]        
I have considered the report of Kevin Turnbull, economist,  and note
that his report merely provides a guide by which to assess these costs and a
means to calculate them.  Mr. Turnbull notes that the increased cost of care in
present value may be estimated at $63,765 for the assisted living portion of
the costs.

[57]        
I am also of the view that it is probable that Ms. Wong would have
required additional care by virtue of her own needs or those of her husband,
and therefore would have moved into a higher care facility at some future point
even if the accident had not occurred.  Further,  she may have required some of
the rehabilitation and support services recommended by Theresa Wong even
without the accident.  In all of the circumstances, (and considering the
adjusted monthly rate the assisting living) I am assessing a present value of
$40,000 for all future care costs.  That sum should be discounted by 25% for
contributory negligence resulting in an award of $30,000.

Special Damages

[58]        
The plaintiff claims $22,810.40 based on the schedule at Exhibit 5.  I
am satisfied on the evidence that those costs were incurred as a result of the
accident.  The special costs should be reduced by 25% as a result of my finding
on contributory negligence.

[59]        
In the result I order:

 General
Damages  ($90,000.00 x75%)             $  67,500.00

 Future Care Costs  ($40,000.00 x 75%) 
30,000.00

 Special Damages  ($22,810.40 x 75%)   
17,107.80

 TOTAL $114,607.80

COSTS

[60]        
Costs may be spoken to if they cannot be agreed to by the parties.

                       “J.
A. Power, J.”                       

The
Honourable Madam Justice J. A. Power