IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120201

Docket: S100923

Registry:
Vancouver

Between:

Winifred Pearl
Kellar

Plaintiff

And

South Coast
British Columbia Transportation Authority and
Greater Vancouver Community Services Society and
MVT Canadian Bus, Inc. and Peter G. Jones

Defendants

Before:
The Honourable Mr. Justice Affleck

Reasons for Judgment

[1]            
The issue of liability for the injuries suffered by the plaintiff when
she fell on April 1, 2008, is to be decided. Counsel agree that if there is
liability, all the defendants are liable except for MVT Canadian Bus, Inc.,
against which the action was discontinued before trial.

[2]            
Only the parties gave evidence, and their versions of the events leading
to the incident which caused the injuries are very largely at odds.

[3]            
The plaintiff was 78 years old on April 1, 2008. Her health and physical
condition were somewhat compromised. She was a large woman in April 2008,
weighing about 200 lbs and because of an accident many years previously, one
leg was shorter than the other, which caused balance problems, particularly
when walking on uneven ground. Despite those difficulties, she lived
independently and was mobile without the aid of a cane or walker. She is an
intelligent and articulate woman.

[4]            
I will first describe the plaintiff’s evidence.

[5]            
On April 1, 2008, she lived in an apartment on Clarke Road in Coquitlam.
She had an appointment on that day to see a doctor for a sleep apnea problem.
There was no urgency to see the doctor. It was not an emergency visit. She was
accustomed to using the HandyDART bus service which she says was aware of her
balance problem.

[6]            
The doctor’s appointment was to be at 2:00 p.m. HandyDART had advised
that the bus would arrive at 1:30 p.m., but it did not arrive until 1:50 p.m.
She had a discussion with the driver, telling him that he was late. He said
that he had another passenger for whom he was expected to drive, and he was
late to pick up that person. The plaintiff was the only passenger in the bus.
The driver, who is the defendant Peter Jones, drove to the doctor’s office on
Glen Drive in Coquitlam, and on the way the plaintiff told Mr. Jones that she
“needed an arm” to take her over to the door of the building. There was
construction work on or adjacent to the Glen Drive office. Mr. Jones was not
able to park adjacent to the curb in front of the doctor’s office because of a
row of cars occupying the parking lane.

[7]            
The plaintiff looked through the windshield of the bus and saw a parking
space some distance ahead of where the bus had stopped. The plaintiff suggested
Mr. Jones park in that space. He did not attempt to do so, but instead
double-parked against the cars parked adjacent to the curb in front of the
doctor’s office. The plaintiff said the area where the bus was parked was not
close to the sidewalk because of some bushes and broken-up rough ground and
also the parked cars.

[8]            
I will describe the bus. This is not controversial. The bus has a door
on the driver’s side, and also the door which the plaintiff used which is to
the right of the passenger seat. The passenger door is bifold, having hinges on
the outer edges for each of the doors which open outwards. The doors have
handles to grasp to assist the person leaving the bus. There are two downward
steps fixed in position as part of the body of the bus and a third step which
is hinged to the bottom, fixed step. The third step acts as an additional lower
step so that the person using that step has only about a six-inch space between
that step and the road surface. The bifold doors cannot be closed when the
bottom step, which is known as a “courtesy step,” is in use.

[9]            
The plaintiff left the bus by the stairs to her right when it arrived on
Glen Drive. Mr. Jones had opened the bifold doors. He stood beside them outside
the bus but did not lower the courtesy step. Despite the courtesy step being in
the stowed position, the plaintiff walked down the steps and stood outside the
bus. It is possible to do this because when the courtesy step is in the stowed
position, it rests on top of the fixed step above it. The plaintiff testified
that the “ground was kind of muddy.” She did not want to step onto the mud
because she thought her shoes would sink. She stepped onto a “grassy spot” and
told Mr. Jones that “I need an arm.” His response was to say that he would have
to step around her to close the door. The plaintiff “stayed there,” but moved a
short distance so that Mr. Jones could get around her. She was facing away from
the bus. She waited a moment for him to give her an arm, but that did not
happen, and she then turned to look back at the bus. The doors were open and
Mr. Jones was in the driver’s seat, looking at a clipboard.

[10]        
The plaintiff started to call out to Mr. Jones to attract his attention.
She described screaming and then waving her arms for 10 or 15 seconds. She testified
that perhaps because of the construction noises, he may not have heard her.
Mr. Jones started the motor of the bus, and the plaintiff thought “he was
leaving me in the lurch.” She decided she had to go on her own. She looked
down, “I always look down,” and began “to pick my way across” to the sidewalk.
While doing so, she stubbed her right foot on something and lost her balance.

[11]        
She fell forward, striking her face. She believes she was briefly
unconscious. Her glasses had come off and she could not see well. One of her
rings had come off her finger. Mr. Jones came over and tapped her on her
shoulder. He put her glasses and her ring in her hand. He tried to lift the
plaintiff up by her arms. She protested that she was a 200-pound woman and he
was pulling her arm out of its socket. She then noticed what she took to be the
boots of a large construction worker who told Mr. Jones to stand aside. The
construction worker then lifted the plaintiff up. She did not get the name of
the construction worker.

[12]        
In cross-examination, Mrs. Kellar said that she had used the HandyDART
since 2000. She said dispatchers would usually call five minutes before the
arrival of the HandyDART van. There was a “grace period” of 15 minutes for the
arrival of the bus. On April 1, 2008, the dispatcher called at 1:45 p.m. to say
the HandyDART was on the way and it then arrived about five minutes later. The
plaintiff said she knew she was going to be late for her appointment, and she
did not like to be late. She left her apartment and went out the side door of
the building. The driver was waiting beside the HandyDART bus. She does not
recall Mr. Jones had been her driver on any earlier occasion. The plaintiff
says she told the driver he was late. The courtesy step had been lowered. The
plaintiff got into the bus. Mr. Jones said to her that he did not want to
be late. He was a substitute driver. He said he wouldn’t be able to walk Mrs.
Kellar to the door because he was late. She repeated several times on the way
to her destination that she needed an escort to the door, but he kept saying he
had another passenger waiting that he had to pick up. The HandyDART arrived at
the Glen Drive destination at about 2:10 p.m.

[13]        
The bus was parked about 30 feet from the front entrance of the doctor’s
office. Mr. Jones left the bus from the passenger’s door. He did not help the
plaintiff down the steps and he did not lower the courtesy step. Mr. Jones
was standing beside the bus close to the parked cars. The plaintiff was
standing on soft ground very near the bottom of the steps. She denies Mr. Jones
asked her to wait while he closed the doors. She denies Mr. Jones helped her to
a sitting position after she fell. She believes Mr. Jones had a telephone with
him. He took the plaintiff to the curb and then he brought “a rag” from the bus
to wipe the blood from her face.

[14]        
I will now describe Mr. Jones’ evidence.

[15]        
He has been employed by HandyDART since June 2007. It is part-time work.
He has also worked at U.B.C. as a technical reader and drives for the Vancouver
film industry. Seventy per cent of his employment has been as a driver. In
April 2008 he had an unrestricted Class 4 licence and a Class 3 “with air.” He
had five days of training with HandyDART when he began in 2007, including
training in the type of disabilities he might encounter as a HandyDART driver.

[16]        
A HandyDART shift is eight hours. He would report to the depot, pick up
a manifest with information about the time of pick-up and destinations and the
passengers’ names and some of their characteristics such as whether they were
mobile.

[17]        
He testified that the objective in driving was to get passengers to
their destinations safely. There is no penalty or disciplinary procedure for
lateness in dropping off a passenger at a destination. The practice is to pick up
passengers at their own door and escort them to the bus and from the bus to the
door of their destination. Mr. Jones accepts that he had a duty to escort the
plaintiff to the door of her doctor’s office.

[18]        
Mr. Jones referred to photographs which became evidence. He described
the courtesy step and how it is raised and lowered, using a simple cord and
pulley system mounted to the left of the passenger bifold doors. The courtesy
step is used when there is no curb for the passenger to step onto when leaving
the bus. The process of lowering the courtesy step takes a second or two.

[19]        
The manifest Mr. Jones received on April 1, 2008, does not have his name
on it. It appears he was a substitute driver. It indicates that Mrs. Kellar was
to be picked up at the side door of her apartment at 13:30, to arrive at her
destination at 13:46 and indicated she was mobile. Mr. Jones’ next pick-up was
at 14:30, also on Glen Drive. Mr. Jones said it would have taken him less
than three minutes “to reposition.” Mr. Jones could not recall if he was
late picking up Mrs. Kellar, but had “a sense of a time issue.” He recalls Mrs.
Kellar being anxious about being late for her appointment.

[20]        
Mr. Jones says that he always escorts clients to the door of their
destination. He does not always physically guide them by holding their arm or
having them hold his. Sometimes he “shadows” the client. He commented that it
is “terribly important to respect the client’s space and agency.” By agency I
understand him to mean the capabilities of the client and their desire to be
independent.

[21]        
Mrs. Kellar was leaving her building as he arrived. Mr. Jones recalls
driving Mrs. Kellar on at least one earlier occasion and he was familiar with
the side entrance. He lowered the courtesy step and shadowed her to the bus.

[22]        
Mr. Jones recognized that Mrs. Kellar had “mobility issues” and was a
“heavy-set woman who could have a number of issues.” She did not have a cane or
walker.

[23]        
Mr. Jones has little recollection of conversation while in the
HandyDART, but says Mrs. Kellar was a little anxious.

[24]        
Mr. Jones was familiar with Mrs. Kellar’s destination. When he arrived,
there were no parking spaces adjacent to the entrance. There were new concrete
curbs. The road surface was “temporary” asphalt. It is a common feature of his
job that it is not possible to pull up to a curb and therefore double-parking
is routine. He positioned the bus so that Mrs. Kellar could travel the shortest
distance possible to the entrance of the building. He described his vehicle as
“tucked in” as close as possible to the parked cars so that Mrs. Kellar could
depart between two parked cars in a safe manner at a distance of about 40 feet
from the door of the building.

[25]        
He has no recollection of Mrs. Kellar making any suggestion about where
to park, but he did not think it appropriate to find a parking spot that would
have required her to walk a greater distance.

[26]        
The paved part of the road went up to the concrete apron which is
attached to the curb. The apron is about 10 inches wide. He recalls no
vegetation adjacent to the road surface.

[27]        
Mr. Jones parked the van; turned off the engine; put on the four-way
hazard lights; checked his mirror; opened the passenger door; opened the
driver’s door; walked around the vehicle and lowered the courtesy step. It was
his intention to assist Mrs. Kellar to the front door. He says that was his
training and that was typical of how HandyDART drivers conduct themselves.

[28]        
As Mrs. Kellar came down the steps, he moved out of her way. He needed
to be behind her to be able to put the courtesy step back up. Mr. Jones has no
present recollection of what he said to Mrs. Kellar at that time, but says he
would have likely said something like “just wait over here” or “I will be with
you in a sec.” Mrs. Kellar stepped away from Mr. Jones and he stood where she
had just been to put the courtesy step back up. He is right-handed and while he
put the step up, he was to the left of the passenger doors to allow him to
raise the courtesy step. He had expected Mrs. Kellar to remain where he had
asked her to stay and not to begin to move off the road. While he was raising
the courtesy step, he said something alerted him that Mrs. Kellar was in some
kind of distress. He saw her in the “finishing stages of a fall.” This happened
about 10 to 15 seconds after Mrs. Kellar stepped off the bus. Mr. Jones dropped
the step and ran to Mrs. Kellar. She was less than one half the width of one of
the parked cars away from him. She had apparently stumbled on a one-inch lip
between the level of the unfinished asphalt and the 10-inch apron of concrete
which formed part of the curb.

[29]        
Mr. Jones was able to assist Mrs. Kellar to a sitting position. She
appeared to have abrasions on her face and hands. He did not see profuse
bleeding. She was distraught. He has no recollection of anyone else helping. He
says he was entirely involved in helping Mrs. Kellar.

[30]        
Mr. Jones helped Mrs. Kellar to sit on the curb and then he went to his
radio in the HandyDART bus to notify his dispatcher of what had happened. He
brought some sterile wipes to clean Mrs. Kellar’s face. He recalls twice
returning to the bus to ask “where the heck is the ambulance.” When it arrived,
and he had given a “quick briefing” to the ambulance attendants and called his
dispatcher, he left.

[31]        
Mr. Jones completed an Employee’s Incident Report at about 4:00 that
afternoon which describes the incident as follows:

At app 1415, I let client off bus with assistance. When she
was off, I turned to raise the drop-step. When I completed this action, I turned
back saw that she had tripped on the curb. (I was double-parked as the loading
zone was occupied.) I assisted her into a sitting position, made her
comfortable & called dispatch to call 911. I stayed with the client until
the ambulance arrived. I informed the ambulance personal regarding the
incident. The client was conciece [sic] throughout.

Abrasions to face, hands, possibly left knee.

* I used sterile wipes to clean
her face while waiting for ambulance.

[32]        
In cross-examination he was challenged with his evidence from his
examination for discovery about whether Mrs. Kellar was using a cane. On
discovery, he said he believed she had a cane. At trial, he said that she did
not. In response to Mr. Bolda’s cross-examination on this point, Mr. Jones
pointed out that on discovery he had not been certain about his answer to this
question. He was also challenged about whether Mrs. Kellar was anxious while
driving to her appointment. He insisted she was.

[33]        
He was asked about a heart condition which he said on discovery Mrs. Kellar
had mentioned to him but which he had not mentioned in his evidence in chief.
His discovery answer was as follows:

A          However, I do
recall — just chitchat with her — the only thing I recall is that she had a
heart condition, she was anxious to get to this doctor, herself she was
anxious. As I recall she was concerned about being late, so there was an
anxiety on her part to get there. So I do recall a certain amount of anxiety in
her demeanour that day, however, it is my duty to just stay calm and get her to
where she needs to go and assist her in any way possible.

[34]        
He acknowledged that he has “since learned” that Mrs. Kellar did not
have a heart condition. Mrs. Kellar said nothing in her evidence about this
question.

[35]        
Mr. Jones at trial said the plaintiff was seated immediately behind him
on the bus. On his discovery he had said he could not recall where she was
seated.

[36]        
He agreed he had put nothing in his incident report about Mrs. Kellar’s
anxiety.

[37]        
A handbook of policies and procedures was referred to. He acknowledged
he was required to provide assistance from the HandyDART to the destination
entrance. The handbook advises drivers to avoid double-parking but Mr. Jones
said that “in practice we are obliged to double-park.” He insisted Mrs. Kellar
was safe where she was between the parked cars. He agreed the road surface was
“not up to finished condition.” He agreed he made the decision to flip the
courtesy seat back up before he escorted Mrs. Kellar to her destination. He
wanted to do so because “we are trained to secure the vehicle.” He accepted
that depending on the circumstances he would not always put the step up before
escorting the passenger. His discovery was put to him where he said he “always”
put the step up before escorting.

[38]        
He insisted the plaintiff was not out of his sight for more than two to
four seconds while he had his back turned to stow the courtesy seat.

[39]        
In argument, the plaintiff submits her version of the accident is
accurate and if accepted, leads to liability because Mr. Jones will have failed
in his duty to escort her properly from the HandyDART bus to the office door
but for which failure she would not have been injured.

[40]        
She points to what are said to be inconsistencies in Mr. Jones’
evidence. The plaintiff argues that even if Mr. Jones’ version is accepted, his
conduct fell “far short of what is required of him by law.”

[41]        
Determining credibility is a difficult task which is made more difficult
when there is no independent witness. The evidence at this trial was given
almost four years after the incident which led to the lawsuit. Memories fade
over time and become less reliable. The ability to resist the perhaps
unconscious influence of interest in the outcome on a party’s evidence must be
considered. The reasonableness of the evidence in all the circumstances must be
considered. If there are telling inconsistencies in a witness’s recollections,
that may militate against accepting his or her testimony.

[42]        
It is not necessary to conclude a witness is lying to reject his or her
evidence or any part of it. Witnesses may get the facts wrong for many reasons,
some of which do not call into question their desire to be truthful.

[43]        
In this case I conclude that Mr. Jones is the more reliable witness.
Mrs. Kellar suffered a sudden and frightening incident which may have had an
effect on her capacity to recall details of that incident. Mr. Jones struck me
as a careful and caring man who was unlikely to have behaved in the callous
manner the plaintiff argues he did.

[44]        
Mr. Jones’ training and personality do not lead me to believe he would
have failed to look after Mrs. Kellar as best he could in the circumstances.
Mr. Jones said he would have told Mrs. Kellar to wait when she got off the bus,
and I believe he did. He testified he is a “fairly conversational person.” He
is more than that: he is loquacious. He is not a man of few words. I expect he
enjoys talking with his passengers and I believe he talked to Mrs. Kellar and
gave her instructions when she alighted from the HandyDART bus. I do not believe
Mr. Jones left Mrs. Kellar standing alone beside the bus and failed to
respond when she yelled and waved her arms. I cannot accept that she did yell
and wave her arms at that point, and I believe this is not an accurate memory
of Mrs. Kellar. Mrs. Kellar was definite she saw Mr. Jones in the cab of
the bus when he should have been escorting her. I do not accept this as
accurate. I believe she saw him in the vehicle when he returned to it to call
his dispatcher.

[45]        
I do not believe the inconsistencies in Mr. Jones’ evidence between that
given at trial and that given on discovery are sufficiently telling that they
undermine his credibility in a manner which causes me to lose confidence in his
version of the events.

[46]        
Mrs. Kellar’s recollection of the physical layout where she fell is not
plausible. She describes stepping on mud and then on grass and then needing to
move past some bushes. That description is not consistent with a newly paved although
“temporary” road surface with curbs. I believe Mrs. Kellar may be remembering
what she saw after the ambulance arrived and she was assisted to move off the pavement
and on to an adjacent area. I also believe Mrs. Kellar was anxious about her
doctor’s appointment and did not wait while Mr. Jones turned his back on her to
stow the courtesy seat. Failing to be patient for a few seconds to allow Mr.
Jones to raise the courtesy seat so that he could perform his duty of escorting
her to the door as he intended to do, combined with her balance problem, was
the reason for the fall, not any want of attention on the part of Mr. Jones.

[47]        
In Gower v. Pacific Transit Cooperative, [1996] B.C.J. No. 3174,
the Court of Appeal allowed an appeal because the trial judge had imposed an
excessively high standard of care on the defendant Transit Cooperative, which
at that time operated the HandyDART service. In my opinion, I would set too
high a standard to impose liability on Mr. Jones and the other defendants in
the circumstances of this case.

[48]        
Mr. Jones lowered the courtesy step for Mrs. Kellar to leave the bus at
her destination. I find nothing improper in the location at which he parked the
bus. It was safe for Mrs. Kellar to disembark at that location. Once
Mrs. Kellar got safely onto the pavement, Mr. Jones paused to stow the
courtesy step so that he could close the doors to secure the bus while he
escorted her to the door of the doctor’s office. He asked her to wait. That
conduct was not only reasonable, it was entirely sensible.

[49]        
But for the unfortunate decision of Mrs. Kellar to begin to walk to the
door of the doctor’s office unescorted, it is unlikely she would have fallen.
Her anxiety to avoid being late for her appointment and her failure to wait for
a moment or two for Mr. Jones to complete his small task is the source of this
very unfortunate accident and of the plaintiff’s injuries.

[50]        
I have no criticism of Mr. Jones’ conduct, and the action is dismissed.

“Affleck
J.”