IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110331

Docket: M109696

Registry:
New Westminster

Between:

Bibi Olabisi Habib

Plaintiff

And

Robert Montgomery
Jack, Coast Mountain Bus Company Ltd. and

Greater Vancouver
Transportation Authority (also known as TransLink)

Defendants

Before:
The Honourable Madam Justice Ross

Reasons for Judgment

[1]            
The plaintiff, Ms. Bibi Habib, received an injury while a passenger
on the bus operated by the defendants Coast Mountain Bus Company Ltd. and
Greater Vancouver Transportation Authority (“TransLink”) and driven by Robert
Jack. Ms. Habib alleges that she was injured when the driver did not
reduce the speed of the bus when going over a speed bump. At the request of the
parties, this trial dealt solely with the issue of liability.

Facts

[2]            
Ms. Habib is presently 46 years old. In 2006, she lived on the
Simon Fraser University campus and was attending courses at BCIT. She
frequently travelled by bus frequently, and in 2006, took the #143 bus route
several times a week to travel to her classes at BCIT.

[3]            
Ms. Habib had suffered an injury in 1995 and as a result of that injury
she carried a large cushion with her to protect her tailbone. In addition, as a
result of her 1995 injury, Ms. Habib was particularly sensitive to motion.
She agreed that sometimes the normal movement on a bus would bother her. She
had been given a permit to use the Handi Dart service for the disabled and
frequently used that service in part because of the jostling she felt on regular
buses. However, Ms. Habib presented no visible sign of disability.

[4]            
The events at issue occurred on June 7, 2006. It was Ms. Habib’s
evidence that between 4:00 and 5:00 p.m., she boarded the #143 bus at the Tower
Road stop in the Simon Fraser campus. She testified on direct examination that
there were about 10 passengers on the bus when she boarded and an additional
two or three passengers got on at her stop. On cross-examination, she agreed that
there could have been more passengers on the bus when the incident took place.

[5]            
She stated that when she rode a regular bus she usually sat in the
courtesy seats for the disabled. She recalled that on the day in question the
courtesy seats behind the bus driver where she usually sat were occupied. She
did not request any special assistance from the driver. Nor did she request to
use the courtesy seats. She did not tell the driver that she had a problem with
her tailbone. She did not show the driver her protective cushion.

[6]            
Ms. Habib went to the end of the bus and seated herself in the
middle seat of the rear most bench seat. The middle seat did not have a
stanchion to hold onto. Ms. Habib stated that there were no passengers on
either side of her. However, she selected the middle seat because it had more
leg room. She agreed that the seat was slippery and that she could slide around
while sitting there with or without the cushion.

[7]            
She stated that the bus took off very quickly from the Tower Road stop.
The distance between the bus stop and the turn onto the South Campus Road was
approximately one block. In the time it took for the bus to travel that block, Ms. Habib
had walked to the back of the bus, placed her backpack on the floor, her
cushion on her seat and sat down. She testified that she was just getting
settled when the incident occurred.

[8]            
The speed bump was approximately one city block from where she boarded
the bus. It was her impression that the bus was going very fast, about 50 km/per
hour. She stated that the driver did not slow down over the speed bump. Ms. Habib
stated that she did not recall the front of the bus going over the speed bump
nor did she recall anything particular about the passage of the front of the
bus over the bump. However, it was her testimony that she had a recollection
that when the back of the bus went over the speed bump there was a violent bump.
Her seat cushion slid out from under her and she became briefly airborne during
which time her neck snapped forward and back. She did not fall. She did not
observe any other passengers experiencing difficulties. She agreed that none of
the passengers discussed bumps or injuries.

[9]            
It was Ms. Habib’s evidence that she has a clear memory of these
events and of the manner and speed of the driver. She likened the experience to
her recollection of a protracted labour giving birth to her child.

[10]        
She stated that she was not holding on to the pole at the time as that
would have required an awkward leaning posture; however, it had been her experience
that drivers always slow down for the speed bump and there was no need to hold
on.

[11]        
It was Ms. Habib’s testimony that at the next bus stop she went to
the front of the bus and told the driver that he should be more careful. She
stated that he said that the speed bump got away from him. She did not tell the
driver that she had been injured. Indeed it was her testimony that at the time,
she did not believe that she had suffered any injury. She did not ask the
driver’s name. She stated that she then returned to her seat. The bus driver
continued to drive very quickly. It was her testimony that the driver went on
the intercom and made a statement to the effect of buckle up, it’s going to be
a bumpy ride. She stated that the driver continued to travel very fast all the
way down the mountain to Production Station where she got off. Ms. Habib
did not get the names of any of the other passengers before she departed from
the bus. Her concern upon disembarking was what she perceived to be rudeness on
the part of the driver.

[12]        
She stated that she recalls going into a drugstore after she got off the
bus and making some notes which she has since lost. It was her testimony that
she then went to her class. She stated that her neck started stiffening up
and it was getting worse as the night progressed. She went to her physician the
next day. Her doctor’s notes record that she told him that the bus went over a
bump and her seat cushion fell off. Ms. Habib stated that she had given
her doctor a more full account of the events, but he chose only to record that
brief note.

[13]        
She stated that she decided that she needed to make a report and called
Coast Mountain, telephoned TransLink and was advised to file a report with
ICBC. She received a package of documents, but did not complete them for
approximately a year. The document that she filled out at the time with respect
to prior warning of accident checks the box “no warning”, but makes no
reference to excessive speed.

[14]        
The notes prepared by Coast Mountain report that Ms. Habib stated
that she spoke with the driver for a few minutes when she first got on the bus
expressing surprise that it was a longer bus. Ms. Habib had no
recollection of having had such a conversation and did not believe that such a
conversation occurred.

[15]        
The bus that was used on the route that day was a long bus of 40 feet
and built very low to the ground. The seats at the very back of the bus, where Ms. Habib
was seated, are higher off the ground than the regular seats.

[16]        
The speed limit through that part of the campus is 30 km/per hour. There
are two speed bumps in the area. The posted speed limit at the speed bumps is
15 km/per hour. The speed bumps are not the typical speed bumps, for example,
the kind found in supermarkets, but rather very gradual and low to the ground. The
dimensions are 16 feet long and 1-1/4 inch tall. The speed bump at issue is
actually on an incline in the road. Ms. Habib did not recall this.

[17]        
The immediate area is very busy with pedestrian traffic, cars entering
and exiting the parking lots. In 2006 there was construction in the area that
made the roadway quite bumpy and in poor condition. Ms. Habib did not
recall that there was construction in the area that affected the roads in 2006.

[18]        
The only other witness was Robert Jack, who was the driver on that day. Mr. Jack
has been employed with Coast Mountain for 21 years. He is now a transit
supervisor and has been for the past five years. Mr. Jack has no
recollection of anything unusual happening on his shift on the date in
question. He gave evidence with respect to his common practice.

[19]        
He stated that at the start of his shift. He would inspect the bus with
the visual inspection and a test of the major systems such as the brakes,
lights, signals and horn. He would check the stanchions and the seats and made
notes of any matters that needed attention. He stated that it was his practice
to follow the speed limit. When boarding and disembarking with this type of bus,
it is his normal practice to kneel the bus to lower the floors to make it
easier for passengers to board. He would then make sure that elderly passengers
or passengers with visible handicaps were seated before he drove off.

[20]        
Mr. Jack stated that at the time of the incident he was very familiar
with this route. He described the road between the Tower Road pickup and South
Campus Road and noted that the speed bump is on an incline on the road. It was
his recollection that there was a great deal of road construction in the area
in 2006 that made the condition of the road very poor.

[21]        
He stated that he has no recollection of his speed on that day, but his
practice as a professional driver is to follow the speed limit. Further, he
noted that the number of pedestrians, vehicles coming out of parking lots, road
construction and traffic necessitated travel at a relatively slow speed.

[22]        
He became aware of this matter when his supervisor provided him with the
claims tracer incident report. This was in August 2006. At that time he had no
recollection of the shift or of anyone telling him that they had been injured
or anyone approaching him. The note that he recorded at the time states:

I have read the tracer claim
report and I am the operator that was driving that day. I am not aware of anyone
getting injured on my bus. At no time on my trip down to Production Station did
a passenger address me as to being injured, or even being airborne. I do recall
there was a lot of construction in this area and the speed limit was very slow.
I also recall the road being very poor at the time. My record will show that I
am a safe conscientious driver.

[23]        
Mr. Jack’s testimony was that he carries a notebook with him while
on shift and that if the passenger reports an injury or if there is any dispute
or damage to the bus he will document this at the time. This would include getting
the particulars of what had happened, the passengers name and contact
information, and where they were sitting. He testified that when he was given
the claim tracer, he referred back to his notebook and noticed that there was
no entry for the day in question. He testified that he no longer has that
notebook.

[24]        
Mr. Jack was not cross-examined with respect to that evidence and
no objection to the evidence was taken at the time. In final argument, counsel
for the plaintiff submitted that the court must disregard and give no weight to
that evidence because the notebook had not been listed in the defendant’s list
of documents. It is the case that the notebook was not listed.

[25]        
In my view, if objection was going to be taken to the evidence, it
should have been taken at the time and not when raised for the first time
during final argument. In addition, as noted earlier, Mr. Jack’s evidence
with respect to the notebook was never challenged in cross-examination. To my
mind, in the circumstances, the failure to list the document is an issue that
goes to the weight to be given to Mr. Jack’s evidence concerning his
notebook. However, it is also my view that the issue of the notebook is relatively
peripheral in the circumstances of this case, since on Ms. Habib’s version
of the evidence, her conversation with Mr. Jack was not likely something
that would have been recorded in any event.

Legal Principles

[26]        
The standard of care owed by a transit operator to a passenger was
addressed in Day v. Toronto Transportation Commission, [1940] S.C.R. 433.
Justice Hudson described the duty as follow:

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 the 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.

[27]        
In this province, Madam Justice Humphries summarized the principles to
be applied in Lawson v. B.C. Transit, 2002 BCSC 1438, as follows at paragraph 18:

As set out in Wang v. Harrod, supra, 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.

[28]        
Mr. Justice Berger in Sawatsky v. Romanchuk, [1979] B.C.J. No. 964
(S.C.) noted that:

…this is not a case where
negligence has been established. I say that because, though the bus lurched as
it started up, it was a lurch that she, as someone who had travelled on the
buses for twenty years had experienced in the past. Anyone who travels on the
buses must expect that from time to time the movement of the buses will not be
smooth and uneventful. Lurches are part of the movement of these buses and
something that the people who travel on the buses learn to expect. Accidents do
happen. And there are bound to be some accidents on the bus system. And some of
them, like this accident, will not give rise to a right to damages.

He characterized the issue
in the case before him as whether

… The braking of the bus was
something that did not fall outside the normal range of movements that
passengers ought to expect on the buses. …

[29]        
Counsel cited a number of authorities which, with one exception,
involved one or both of an elderly or infirm passenger and a violent fall.

·      
Day – the passenger was thrown to the floor;

·      
Sawatsky – the passenger fell;

·      
Planidin v. Dykes, [1984] B.C.J. No. 907 (S.C.) – the
elderly passenger was thrown to the floor;

·      
Gatin v. British Columbia Transit Authority, February 17,
1994 BCSC – the elderly passenger was thrown from the seat;

·      
Exshaw v. British Columbia Transit Authority, [1995] B.C.J.
No. 1079 (S.C.), [1997] B.C.J. No. 1814 (C.A.) – the elderly
passenger slid off the seat and fell to the floor;

·      
Wang v. Horrod, [1997] B.C.J. No 1464 (S.C.); [1998]
B.C.J. No. 1288 (C.A.) – elderly passenger fell and struck head;

·      
Jansen v. British Columbia Transit, 2004 BCSC 722 – the
passenger fell backward striking the seat and seat back with sufficient force
to cause a fracture;

·      
Kean v. British Columbia Transit, [1998] B.C.J. No. 2903
(S.C.) – the passenger was thrown forward hitting the windshield and dash; and

·      
McNaught v. Alblas, 2006 BCSC 535 – the elderly passenger
fell.

[30]        
In the present case, Ms. Habib is neither elderly nor possessing
any visible infirmities. Rather, she is a young woman with a healthy and
vigorous appearance. It is the case that because of her earlier injury, she is
particularly sensitive to movement and required the protective cushion.
However, this would not have been apparent to Mr. Jack and there is no
suggestion that Ms. Habib brought her difficulties to his attention. In
addition, and again unlike the cases cited, the “accident" did not involve
Ms. Habib falling to the floor or being thrown out of her seat. In this
case, it was her cushion that fell to the floor; Ms. Habib was out of
contact with her seat as this occurred.

[31]        
The case that bears some similarities to the circumstances in the case
at bar is Lalani v. Wilson, [1988] B.C.J. No. 2408 (S.C.). In that
case the incident occurred in heavy rush-hour traffic. She recalled that the
driver shouted a warning to hang on, or words to that effect, following which
the brakes of the bus were applied suddenly. When the bus braked, the plaintiff
was thrown first to her left and then to her right. She testified that she felt
the pinch in the middle of the right side of her neck. She did not at the time
consider it serious enough to speak to the driver. Nor did she ask the driver
or anyone else what had happened. She spoke with her family doctor that evening
and reported the incident to the transit authority about a week later. The
defendant driver had no recollection of the incident. Specifically, she could
not recall an incident around that time in which she found it necessary to call
passengers or of the sudden application of brakes in the circumstances. She
described the practice to be followed in circumstances in which a passenger may
have been injured and her personal practice in circumstances in which there was
any reason to believe someone might have been injured. She stated that if she
had to stop so suddenly the passenger may have fallen; that would be a
circumstance she would have remembered.

[32]        
Mr. Justice Lysyk dismissed the action. In doing so he commented on
the standard of care and the application of the reverse onus as follows:

Certainly, there is a heavy
responsibility on the operator of the bus to exercise due care, But the
defendants are not insurers and whatever the onus upon the defendant, the
situation is not one of res ipsa loquitur. I have not lost sight of the
frequently quoted passages from the decision in Day v. Toronto
Transportation Committee (1940), S.C.R. 433, and other decisions in this
court and elsewhere referring to the judgments in Day, upon which Mr. McTavish
here relies in support of his submission to the effect that where the defendant
is a common carrier the plaintiff enjoys the benefit of a reverse onus. But
some meaning must be attributed to the recognition in those judgments that the
carrier is not an insurer, Further, in circumstances such as those here
present, where the possibility of injury was not self-evident and no attention
was drawn to such possibility at the time, the difficulties involved in
imposing a legal obligation upon the carrier to disprove negligence are
obvious. While expressed in positive terms of proving due care, in effect the
carrier is being called upon after the event to prove a negative, that is, that
the driver was not driving at an excessive rate of speed or had not failed to
keep a proper look out or was not otherwise careless.

[33]        
In the present case, as in Lalani, the claim was brought to the
driver’s attention some considerable time after the event. In addition, as in Lalani
the plaintiff did not report an injury to the driver at the time and there
was nothing in the circumstances to bring home to him the possibility that an
accident or injury had occured. Thus, it is not surprising that Mr. Jack
has no present recollection of driving that shift; indeed, it would be
surprising and perhaps even suspicious if, in the circumstances, he claimed to
have such recollection.

Discussion

[34]        
Ms. Habib submits that a prima facie case of negligence has
been made given the fact of her injury sustained while riding as a passenger on
the public transit bus. She submits further that the defendants have failed to
establish that the injury occurred without negligence on the part of the
carrier as, in her submission, Mr. Jack was driving far in excess of the
speed limit on South Campus Road, and in particular, the 15 km/per hour speed
limit over the speed bumps. Counsel submits that defendants have led no
evidence to discharge the presumption of negligence and have provided no
explanation that would account for a passenger being airborne.

[35]        
It was the defendants’ submission that the court is entitled to give
weight to Mr. Jack’s evidence with respect to his regular practice. It was
counsels’ submission that the incident occurred because of the plaintiff’s
choice of seat on a bus, coupled with her use of the cushion and not because of
any negligence on the part of Mr. Jack. Counsel submits that, on a balance
of probabilities, the most likely scenario is that the bus was travelling the
speed limit when it went over the speed bump on South Campus Road and Ms. Habib
lost her cushion during the normal operation of the bus. She had simply not yet
settled onto the slippery elevated seat at the rear of the bus that she was not
as accustomed to when the bus drove over the speed bump. In counsel’s submission
this was, as in Sawatsky, an incident that occurred within the normal
and expected movement of buses. Finally, with respect to Ms. Habib’s
evidence with regard to the speed limit, counsel submits that Ms. Habib
was not watching the speedometer, she was not looking out of the front of the
bus, she was not sitting in her usual seat near the front, but rather, at the
extreme rear of the bus and was just getting settled at the time. In counsel’s
submission, she was distracted and out of her element. Counsel submits that it
is extremely unlikely that she would be certain of the speed in such
circumstances.

[36]        
In my view, it is appropriate to give weight to Mr. Jack’s evidence
with respect to his normal practice. The propriety of such evidence was noted
by Seaton J.A., for the court, in Belknap v. Meakes, [1989] B.C.J. No. 2187
(C.A.):

If a person can say of something he regularly does in his
professional life that he invariably does it in a certain way, that surely is
evidence and possibly convincing evidence that he did it in that way on the day
in question.

Wigmore on Evidence, Vol.
IA (Tillers Rev. 1983), states that there is no reason why habit should not be
used as evidence either of negligent action or of careful action (Para. 97),
and that habit should be admissible as a substitute for present recollection.
Phipson on Evidence, 13th ed., para. 9-22, reaches a similar conclusion.

[37]        
Moreover, such evidence, even standing alone, can serve as a basis for
the finding that something was done in a certain way: see R. v. Ashmore,
2011 BCCA 18 at para. 61. I agree with the observation of Mr. Justice
Lysyk in Lalani that to do otherwise in circumstances where the
possibility of injury was not self-evident and no attention was drawn to that
possibility risks treating the defendant common carrier as an insurer.

[38]        
The conditions described by Mr. Jack, the pedestrian traffic, the
vehicles leaving parking lots, construction, poor road conditions are all
consistent with the need to drive slowly. There is no suggestion in the
evidence that any other passengers experienced difficulties. I think it is
likely that had Mr. Jack, as suggested by the plaintiff, proceeded at 50 km/per
hour over the speed bumps, other passengers would have experienced some difficulty.
I also think that had Mr. Jack been driving in the manner suggested by Ms. Habib,
producing a violent bump, she would have been thrown from her seat and fallen
to the floor, which she did not. I think that had the bus proceeded at high
speed over the speed bump, there would have been a significant bump as each of
the front and rear wheels passed over. Yet Ms. Habib noticed nothing unusual
about the passage of the front wheels over the bump. I conclude that the
circumstances are more likely not consistent with the bus having been driven
over the speed bump at a high rate of speed.

[39]        
I think that the most likely explanation for the cushion slipping off
the seat was a combination of the factors of the slippery seat, the height of the
rear seat, the fact that Ms. Habib was not holding on to a stanchion, and
the added instability created by the cushion. This is in my view an event that
is consistent with the normal and careful operation of a bus.

[40]        
It is unfortunate that Ms. Habib sustained an injury. However, I
have concluded that the evidence does not establish that the high standard of
care of the defendant carrier was breached. The action is dismissed.

“Ross J.”