IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150828

Docket: S127742

Registry:
Vancouver

Between:

Karen Varma

Plaintiff

And

Rocky Mountaineer
Vacations Ltd. doing business as

Rocky Mountaineer

Defendant

Before:
The Honourable Mr. Justice N. Smith

Reasons for Judgment

[1]            
The plaintiff Karen Varma claims damages for injuries suffered in a fall
aboard the defendant’s “Rocky Mountaineer” passenger train. The defendant
applies for dismissal of the plaintiff’s claim on summary trial.

[2]            
The parties agree that the liability issue is suitable for determination
on summary trial pursuant to R. of the Supreme Court Civil Rules, B.C.
Reg. 103/2015. If the defendant’s application is not successful, a trial to assess
damages is set for November 2, 2015.

[3]            
The plaintiff, who is now 66 years old, lives in West Lafayette, Indiana.
She and her husband boarded the luxury, tourist-oriented train in Vancouver on
August 5, 2011 for a two-day trip to Jasper, Alberta. The trip was in
celebration of their 40^th anniversary. They were passengers in a
“Gold Leaf” first class car. This was a two level car, with passenger seating
on the upper level and a dining area and washrooms below. The two levels were
joined by a curved staircase.

[4]            
The car was entered through a vestibule that measured approximately 2.4
metres by 2.5 metres. A single step ran across the width of the vestibule so
that entering passengers going to the seating or dining areas had to take one
step down.

[5]            
The vestibule’s windows were open on both sides. When its gate was
closed and the train was running, the vestibule became an area where passengers
could stand to take unobstructed photographs or enjoy fresh air. Windows in the
seating area did not open. There were handrails along both sides of the
vestibule, but none in the middle or across it, so passengers had cross a short
open area before getting to or after leaving the handrails.

[6]            
The plaintiff says in an affidavit that, approximately seven hours after
boarding the train, she was seated in the passenger area when there was an
announcement that the train was approaching a scenic area called “Devil’s
Gulch.” She says she recalled hearing that passengers could take pictures
through the open windows of the vestibule.

[7]            
The plaintiff went downstairs to the vestibule, but says she found it
was “packed” with passengers who were standing at the windows and holding onto
the railings. She says that she managed to get to a spot where she could reach
between two other people to grab hold of the railing, but decided the vestibule
was too crowded for her to take photographs.

[8]            
In order to return to her seat, the plaintiff says she had to let go of
the railing and cross the open area where there was nothing to hold onto. Just
as she lifted her left foot to take the single step down, the train suddenly
and without warning braked quickly “as if coming to an emergency stop,”
although it did not come to a complete stop. She says she was thrown forward
and, with nothing to grab hold of, fell onto the metal floor.

[9]            
As a result of her fall, the plaintiff suffered a broken kneecap. She
left the train when it made its overnight stop at Kamloops and did not complete
the trip. She says the knee injury still causes pain and limitations. Other
injuries were largely resolved within about two weeks.

[10]        
It is the Rocky Mountaineer policy that, before the train departs, staff
members aboard the Gold Leaf car are expected to read a safety announcement
that advises passengers to “use the seat tops to balance yourself” when moving
about the coach because “we sometimes encounter occasional bumps and jars.” The
plaintiff denies hearing that announcement, but says she was an experienced
train traveller and familiar with such movements. The only references to the
vestibule in the safety announcement warned passengers not to lean or lift
children over the railings and to not to attempt to open the gates.

[11]        
As described by the plaintiff, the movement that caused her to fall was
more than a matter of “occasional bumps and jars.” She described a “sudden and
dramatic deceleration,” or a “lunge stop,” but said she was also familiar with
that kind of train movement.

[12]        
Doug Rogers, the defendant’s senior manager of onboard operations says
the only movement the plaintiff experienced was the “normal bumps and jarring.”
However, Mr. Rogers was not on the train at the time and did not ask any
employees who were. He admitted on discovery that he has “no idea” of whether
there was a bump or jar at the time.

[13]        
His evidence is based solely on the fact that the defendant has no
record of a sudden or significant jerking. He says there would be no reason to
stop at that location and if the train had to stop for any reason the staff
would have recorded it. But the plaintiff does not say the train came to a
complete stop, only that it suddenly slowed as if it was about to.

[14]        
It was the defendant who chose to bring this summary trial application
on the basis of the available evidence. Mr. Rogers’ evidence is no more than
speculation and conjecture based on a lack of records. The plaintiff’s
description of the train’s motion as a sudden and significant deceleration
beyond the normal “bumps and jarring” is therefore not contradicted and there
is no reason to reject it.

[15]        
Accepting the plaintiff’s evidence of what happened does not in itself
answer the question of whether the defendant negligently caused her injury. The
plaintiff’s claim is based on negligence at common law. The Occupiers
Liability Act, R.S.B.C. 1996, c. 337 does not apply because the definition
of “premises” in s. 1 of the Act excludes railway cars in motion. However,the
test for liability at common law is the same: to protect others from an
objectively unreasonable risk of harm. The defendant is not required to remove
every possible danger; the test is one of reasonableness: Agar v. Weber,
2014 BCCA 297 at paras. 29 and 30.

[16]        
Although the duty may include a warning about a hazard, it is not
negligence to fail to warn an adult of “the ordinary risks arising from the
exigencies of everyday life”: Malcolm v. B.C. Transit, (5 October 1988),
Vancouver CAV00450 (B.C.C.A.).

[17]        
A passenger aboard a train is expected to be aware, as the plaintiff
was, of the normal swaying, bumping and jarring and is expected to protect
herself by at least holding on to what is available. That is what the defendant
advised passengers to do while in the seating area. The movement the plaintiff
describes was more sudden and dramatic than the normal motion, but not
completely outside her experience on other trains.

[18]        
There is no evidence of why this sudden deceleration occurred and no
evidence from which it can be inferred to have been the result of negligence by
the defendant’s employees. The question relates to the safety of the vestibule
as an area passengers would be in and moving through while the train was in
motion.

[19]        
If passengers are expected to be aware of the risk of sudden movements
and to take reasonable steps to care for their own safety, it follows that
reasonable means for them to do so should exist in areas where they are likely
to be.

[20]        
It is clear from Mr. Rogers’ discovery evidence that the defendant knew
that passengers congregated in the vestibule to take pictures and that there was
a great deal of traffic in and through that area. In fact, the defendant at
least impliedly encouraged passengers to use the vestibule. The whole tourist
experience was based on the passengers’ enjoying the scenery and the open air
vestibule would clearly be seen by many passengers as the best place from which
to take photographs. At the time the plaintiff fell the defendant knew or ought
to have known the vestibule would be particularly well-used because there had
been an announcement of an upcoming scenic area.

[21]        
The standard safety announcement in the Gold Leaf cars clearly indicated
an expectation that some passengers would spend time in the vestibule. But it only
warned against conduct, such as leaning out the open window, which might lead
to passengers falling out of the train or being hit by objects the train was
passing.

[22]        
However, the train also had some single level cars where the vestibules
were smaller. In those cars, passengers were advised that the defendant
recommended a maximum of four people in the vestibule at one time. There was no
maximum recommended in the Gold Leaf cars or any effort to control the number.

[23]        
The design of the vestibule in the Gold Leaf cars was such that
passengers going in and out of the area had to, at some point, briefly cross a
section where the handrails were out of reach. The defendant knew or ought to
have known that at that moment, however briefly, passengers would be unsteady
due to the normal movement of the train and at particular risk from the more
pronounced movements that were to be expected from time to time.

[24]        
The danger was increased by the presence of a step running across the
vestibule. There was no evidence of the step’s purpose or why it was a
necessary part of the design. The plaintiff was aware of the step, but happened
to be in a particularly vulnerable position–stepping down with no handrail–when
the sudden deceleration occurred.

[25]        
In her affidavit the plaintiff lists a number of possible warnings that
were not given. These are:

a.     That
entering, staying in or leaving the Vestibule while the train was in motion was
risky or dangerous or that care needed to be taken while entering, leaving or
staying in the Vestibule;

b.     That
certain areas of the Vestibule do not have any railings or handles or anything
to hold onto;

c.      That
passengers entering the Vestibule should hold on to the railings in the
Vestibule at all times;

d.     That, in
the event the Vestibule was full of passengers who were holding onto all of the
railings, entry into the Vestibule was unsafe and should not be undertaken;

e.     That there
were no staff present in or near the Vestibule to control or monitor the number
of passengers who could access the Vestibule;

f.       That
entering the Vestibule is at the passenger’s risk; and

g.    
That Rocky Mountaineer did not limit the number of people who could use
the Vestibule at any given time and it was possible that there might be
insufficient railings for passengers to hold onto.

[26]        
The plaintiff said that if any of those warnings had been given “I doubt
very much that I would have entered the vestibule.” The plaintiff’s evidence on
that point is not contradicted, but that is not conclusive. As Southin J.A.
said in Hongkong Bank of Can. v. Touche Ross & Co. (1989), 36
B.C.L.R. (2d) 381 at 392 (C.A.):

It is always easy for a witness
to say what he would have done and for a judge to say he accepts that
assertion. But such evidence is, in truth, not evidence of a fact but evidence
of opinion. It should be tested in the crucible of reason.

[27]        
All of the warnings that the plaintiff postulates were warnings of a
hazard that she was capable of recognizing on her own. But it must be
remembered that she was on vacation aboard a luxury train where she was being
encouraged to be aware of and enjoy the scenery. That is not a circumstance
where people are thinking first and foremost about the risk of injury or carefully
weighing the risks of every step they take. It was entirely foreseeable by the
defendant that a passenger in the position of the plaintiff would be
particularly relaxed and perhaps less careful than normal.

[28]        
In those circumstances I am satisfied that a warning not to use the
vestibule when it was too crowded or a reminder that it would not always be
possible to reach the handrail would more likely than not have reminded the
plaintiff of the danger and caused her not to enter the vestibule at that point.
I find that the defendant’s failure to provide such a reasonable warning
against a foreseeable risk of harm to be a breach of the standard of care.

[29]        
I also find that the defendant was negligent in failing to provide
something for passengers to hold onto when entering or leaving the vestibule. Just
as there were handrails on each side of the vestibule, it would have been a
simple matter to install a parallel handrail running all or partway down the
middle of the vestibule.

[30]        
Mr. Rogers says in his affidavit that such an additional railing would
impede the ability of passengers to move through the vestibule or to disembark
in an emergency. This is stated as a bald assertion with no explanation of why
that would be the case or what danger it would create.

[31]        
In any event, the defendant knew or ought to have known that the step
created a particular hazard or area of vulnerability. Even if a railing down
the length of the vestibule was not possible, a single post at or near the
step, or even a handhold hanging from the ceiling at that point, would have
been a reasonable measure to protect passengers.

[32]        
I therefore find that the defendant was negligent in failing to provide
a method for passengers to enter and leave the vestibule safely, as well as in
failing to caution passengers against using the vestibule when it was too
crowded and/or warn that they would not always be able to reach the handrails.

[33]        
However, I also find that he plaintiff must bear some of the
responsibility for her injury. On her own evidence, she knew the step was there
and knew, having entered the vestibule that she had to cross an area with no
handrails. She was also familiar with the unpredictable nature of train
movements.

[34]        
Having reached a spot where she could hold the handrail, she chose to
leave it and move through the vestibule and down the step without access to the
handrail. If she was properly caring for her own safety, she would have waited
until the vestibule became less crowded so she could have moved along the side
at or near the handrail. That would have allowed her to at least make the step
down with the aid of the handrail before she had to cross an open area. I asses
her contributory negligence at 35% and therefore find the defendant 65% liable
for the plaintiff’s injuries.

“N.
Smith, J.”