IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Isaacs v. Coast Mountain Bus Company Ltd., |
| 2014 BCSC 2212 |
Date: 20141010
Docket: M135140
Registry:
New Westminster
Between:
Rose Isaacs
Plaintiff
And:
Edward
Payne, South Mountain Bus Company Ltd. and South Coast British Columbia
Transportation Authority doing business as Translink
Defendants
Before: The Honourable Madam
Justice Watchuk
Oral Reasons for Judgment
Counsel for the Plaintiff: | Roy Swartzberg |
Counsel for the Defendants: | Gwen J. Chambers |
Place and Date of Hearing: | New Westminster, B.C. October 7, 2014 |
Place and Date of Judgment: | New Westminster, B.C. October 10, 2014 |
Introduction
[1]
On June 17, 2009 the plaintiff, Rose Isaacs, sustained injuries
when she fell after exiting the front door of a transit bus.
[2]
The issue in this trial is confined to liability. The parties have come
to an agreement with regard to damages which will flow from the decision on
liability.
Background
[3]
The bus was driven by the defendant Edward Payne who is employed by the
defendant Coast Mountain Bus Company Ltd. (Coast Mountain). The bus was
owned by the defendant South Coast British Columbia Transportation Authority
dba Translink (Translink).
[4]
The defendants deny responsibility for the incident. They say that if
they have any degree of responsibility, the plaintiff was contributorily
negligent.
Issues
[5]
The factual and legal issues for determination in this liability matter are:
1.
Whether Ms. Isaacs fell as she was getting off the bus or when she
was walking away after getting off the bus;
2.
Whether the bus was stopped too far from the curb; and
3.
Whether the plaintiff was contributorily negligent by virtue of the
manner in which she exited the bus.
The Law
[6]
The law is not in issue. Counsel agree that it is thoroughly set out by
Madam Justice Dardi in the case of Prempeh v. Boisvert, 2012
BCSC 304 at paras. 15-20 as follows:
[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 passengers 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 (Q.L.)(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 A.B.C.A. 221, at ¶46,
leave to appeal to S.C.C. refd, [2000] S.C.C.A. No. 483 (S.C.C. Mar. 29,
2001).
[7]
With regard to contributory negligence, the factors to be considered are
summarized in the case of Falconer v. BC Transit Corporation, 2013 BCSC
715 at paras. 51-52:
[51] The issue then becomes how liability should be
apportioned. In considering this question from the perspective of relative
blameworthiness, some of the criteria referred to in Aberdeen v. Township of
Langley, Zanatta, Cassels, 2007 BCSC 993, varied on other grounds,
2008 BCCA 420, are germane. These are summarized at para. 62 and 63:
[62] Thus, fault is to be determined by assessing the
nature and extent of the departure from the standard of care of each of the
parties. Relevant factors that courts have considered in assessing relative
degrees of fault were summarized by the Alberta Court of Appeal in Heller v.
Martens, [2002 ABCA 122] at ¶ 34 as follows:
1. The nature of the duty owed by the
tortfeasor to the injured person
2. The number of acts of fault or
negligence committed by a person at fault
3. The timing of the various negligent
acts. For example, the party who first commits a negligent act will usually be
more at fault than the party whose negligence comes as a result of the initial
fault
4. The nature of the conduct held to
amount to fault. For example, indifference to the results of the conduct may
be more blameworthy
Similarly, a deliberate departure from safety rules may be
more blameworthy than an imperfect reaction to a crisis
5. The extent to which the conduct
breaches statutory requirements. For example, in a motor vehicle collision,
the driver of the vehicle with the right of way may be less blameworthy
[Authorities omitted.]
See also Vigoren v. Nystuen, [2006 SKCA 47] at ¶ 90
(summarizing these same factors).
[63] Many of the above-noted factors are discussed in
Chiefetz, Apportionment of Fault in Tort, [(Aurora, Ont.: Canada Law
Book, 1981)], at pp. 102-104. Considering that, I conclude it would be
appropriate to add the following as relevant factors:
6. the gravity of the risk created;
7. the extent of the opportunity to
avoid or prevent the accident or the damage;
8. whether the conduct in question was
deliberate, or unusual or unexpected; and
9. the knowledge one person had or
should have had of the conduct of another person at fault.
[52] In Aberdeen, it
was stated that, [a]nother important factor in assessing the relative degree
of blameworthiness of the parties is the magnitude of the departure from the
standard of care (at para. 66).
[8]
The defendants policies concerning the loading and unloading of
passengers at a bus stop provide evidence of the standard of care, but are not
determinative. This was well-articulated in Nice v. John Doe (1997), 54
Alta. L.R. (3d) 227; 207 A.R. 255 at para. 37, revd on other grounds,
2000 ABCA 221:
37 Although I have
reviewed herein, in some detail, the evidence of the defendants with respect to
City policy, the policy is not determinative of the standard of care owed to
the plaintiff. The policy is simply one indicia of whether or not they have
met that standard of care but the city can still be negligent even if they
follow the policy or if there is no policy if what occurred was in fact
negligent. In that case, the policy will not absolve them of liability.
The Evidence
[9]
In order to resolve the factual issues upon which the finding of
liability will rest, I will first review the evidence of the plaintiff and the
defendant Edward Payne who were the only witnesses in the trial.
[10]
On the date of the incident, June 17, 2009, Ms. Isaacs was 82
years old. At about 11:00 a.m., she took the bus from her home in
Coquitlam to the Lougheed Mall. Her intention was to shop at Walmart since it
had an item which was cheaper than the Zellers closer to her home. She did not
have any plans to meet anyone at the mall.
[11]
As she set out to go shopping that morning, she was wearing flat shoes.
She was carrying a shopping bag and her wallet, hair brush and glasses were in
the shopping bag. The bag was not heavy.
[12]
The bus ride was about 20 minutes during which Ms. Isaacs sat on
the side bench seats which are reserved for seniors and which face the aisle.
She was sitting towards the front of the bus on the opposite side of the bus
driver.
[13]
Ms. Isaacs intended to get off the bus at the stop before Lougheed
Mall, in order to get exercise. It was a nice day and she thought she would
walk the extra distance to the mall.
[14]
When the bus stopped, she stood up in readiness to leave by the front
door. Ms. Isaacs testified that the step on the bus was very high and far
from the curb. She says that she decided that she could jump to the curb
rather than going down the step to the pavement and then walking to the curb in
order to get to the sidewalk.
[15]
Ms. Isaacs testified that the bottom step of the bus was 12-14
inches from the curb. She jumped because she thought the step to the road was
very high so she grabbed the railing and jumped. Ms. Isaacs recalled that
there was only one step at the front of the bus which was the step she jumped
from. She said that she landed on two feet on the sidewalk and then lost her
balance and fell. As she felt she was falling, she put out her right hand
which resulted in her thumb being bent when she fell. She heard something
crack as she went down, and landed facing the bush and the trees on the
opposite side of the sidewalk. The bus was behind her.
[16]
As a result of the fall, she lost her breath and could see stars for a
few minutes. A young man who had exited from the back of the bus came to help
her but because she did not know what he wanted, she told him to leave her
alone. For a minute after the fall, she could not speak, or get up, or get her
breath. When the bus driver came to help after a couple of minutes, and asked
about an ambulance, she said yes to the ambulance because she had heard cracks
as she fell. She had broken her shoulder in two places and broken her arm.
[17]
Ms. Isaacs does not travel by bus frequently. When she does travel
on a bus, she usually holds on to the railing. In this instance, she did not
ask the driver for help to get off because she said, it all happened so
quickly.
[18]
Ms. Isaacs testified that she did not trip, nor did her legs give
way after she took a step. She was clear in her testimony that she lost her
balance when she landed.
[19]
Prior to the incident Ms. Isaacs regularly went dancing two to
three times a week at the Senior Centre. She had no knee problems and had no
treatment for her legs or knees. Ms. Isaacs had no previous issues with
mobility in 2009.
[20]
As Ms. Isaacs was waiting on the sidewalk after she fell, she
observed that the back of the bus was closer to the curb than the front of the
busthe bus was at an angle with the front further away from the curb.
[21]
Mr. Edward Payne has been a transit operator with Coast Mountain
for 23 years. He regularly drives the route on which this incident occurred,
the route from Coquitlam Centre to Lougheed SkyTrain. In the two months prior
to the incident, he had driven this route five days a week and four times each
day. On that day he had been on shift for 5½ hours and this was his third trip.
He was driving a New Flyer High Floor Diesel bus.
[22]
Mr. Payne recalls Ms. Isaacs being on his bus previously. On
this day she did not have any difficulty getting on the bus; she held the
railing and found a seat right across from him. There was no conversation
other than his usual good morning to his passengers.
[23]
The bus stop at which Ms. Isaacs exited is on a straight stretch of
North Road with a slight downgrade. North Road had two lanes of traffic in
each direction at that location.
[24]
The bus that Mr. Payne was driving at that time was a high floor
bus which had three steps to go down to the front door. The bottom step is
approximately six inches above street level and if the bus is pulled into the
curb, the lowest step would be two inches over the curb, which is four inches
high.
[25]
As the bus approached the stop, there were approximately 15 to 20 people
on the bus with no one standing. Four to five people stood in preparation for
exiting from the rear door.
[26]
Mr. Payne testified that he always pulls into a stop at a straight
angle six inches from the curb with the front wheel lined up with the
sidewalk. He uses the eight inch concrete apron from the curb as a guide. He
is unable to get closer than six inches to the curb because the mirror on the
right side of the bus extends three inches. If a light pole is close to the
curb, the bus cannot get closer than six inches without the mirror hitting the
light pole.
[27]
In this instance, Mr. Payne stopped a few feet before the light
pole at the bus stop so that when he pulled out, his mirror would not hit the
pole. Mr. Payne testified that his bus was not at an angle because he
travels straight in the curb lane and the bus therefore, remains an equal
distance from the curb, both at the front and back of the bus.
[28]
The policy of Translink is set out in the Bus Operators Policy &
Procedure Manual, which states that buses should be stopped parallel, and
within six to ten inches from the curb. Mr. Payne prefers to stop six
inches from the curb especially if there are seniors on the bus as it is easier
for them to get off.
[29]
On the date of the incident there was no debris, water, or construction
in the area of the bus stop.
[30]
Mr. Payne testified that the plaintiff who was sitting beside him
was the first to stand up. She hopped down three steps and hopped off the
bus. Mr. Payne said that he cringed at that point because he knew from
previous occasions that she uses the bar or railing.
[31]
After she hopped down and hopped off, Mr. Payne said that her first
foot landed then her second foot landed and then she turned, took a step and her
knee buckled and she fell. When she fell, her upper body was towards the front
door.
[32]
Mr. Payne did not tell her to watch her step because he feared that
it would startle her because of her momentum as a result of her pace which was
too brisk compared to prior occasions he had seen her on the bus. His normal
practice if a passenger asks for help is to go and help. He does not offer
assistance without a request.
[33]
After Ms. Isaacs fell, a passenger who had exited from the back
door attempted to assist her but Ms. Isaacs refused his offer. When Mr. Payne
saw that she was not getting up, he put the brakes on the bus and went to
help. He helped her to stand and he called an ambulance. He then waited with
her for the ambulance.
[34]
The Incident Report that he filled out later the same day stated:
Around 10:47 am at the bus
stop on North Road and Austin (southbound) I stop[p]ed to let some people off.
At which time an elderly lady name Rose Isaacs step[p]ed out the front door. She
then took one step onto the sidewalk when her legs gave out and she fell down,
she used her right hand to support herself and in the process I think she hurt
her right shoulder.
[35]
Mr. Payne testified that while he was assisting Ms. Isaacs, he
asked her where she was going and she said she was going to meet a friend.
[36]
In cross-examination Mr. Payne agreed that as he brings the bus to
a stop, he turns the front wheel to the left so that he is ready to pull out.
He disagreed that by doing so on this occasion he angled the front of the bus away
from the sidewalk.
[37]
Mr. Payne also agreed in cross-examination that as he pulls in to
the curb to bring the bus to a stop, he looks at the outside mirror on the
right side, the outside mirror on the left side to check for cars, that he
looks in the rear view mirror to observe the passengers preparing to exit from
the rear door, he releases the doors, he continues to observe the back of the
bus for passenger safety and observes the front door also for the safety of the
passengers exiting from the front door. He stated that there is always a lot
going on when you drive a bus and that you have to be aware of what is going
on.
[38]
When Mr. Payne wrote the Incident Report, he believed that Ms. Isaacs
fell when she was already on the street level, rather than when she was getting
off the bus. As such, he gave only a basic description of the incident in that
report.
Discussion
[39]
The first factual issue to be resolved is whether Ms. Isaacs fell
getting off the bus or whether she fell after landing on the sidewalk and
taking a step. If she fell while walking on the sidewalk, there would be no
negligence on the part of the defendants. However, if she fell while getting
off the bus, there is potential negligence.
[40]
Ms. Isaacs testimony on how she fell was very clear. It was
unshaken in cross-examination. She stated that she landed on two feet and lost
her balance. She put out her right hand to break her fall and to save herself
when she knew she would lose her balance.
[41]
Mr. Paynes evidence is that Ms. Isaacs took a step onto the
street, turned from west to south and then she fell. He described her leg
buckling and her knee turning wobbly prior to the fall.
[42]
I prefer the evidence of Ms. Isaacs in this regard for multiple reasons.
Firstly, Mr. Payne had a restricted opportunity to observe Ms. Isaacs
after she got off the bus. Although he testified that he was watching her the
whole time during which she stood, went down the stairs, landed on the sidewalk
and took a step, that evidence is inconsistent with his evidence about the care
he takes to pay attention to the entirety of the bus and its passengers when arriving
and stopping at bus stops. He must, for safety reasons, observe both left and right
outside mirrors, the inside rear view mirror, the passengers exiting the rear
door, and the passengers exiting the front door. Although I believe that Mr. Payne
was trying to be accurate and candid in his testimony, I cannot conclude on the
evidence that he had an uninterrupted view of Ms. Isaacs after she exited
the bus.
[43]
The Incident Report written by Mr. Payne later that day is more
consistent with the testimony of Ms. Isaacs. Mr. Payne stated that Ms. Isaacs
stepped out the front door. She then took one step onto the sidewalk when her
legs gave out and she fell down. I construe the statement to mean that the
one step onto the sidewalk is the step out the front door of the bus onto the
sidewalk where her legs gave out as she fell.
[44]
Further, the evidence with regard to where Ms. Isaacs fell
indicates that her direction of motion after she jumped to the curb propelled
her forward toward the trees and bushes on the opposite side of the sidewalk
from the bus. She fell with her back to the bus. I accept Ms. Isaacs
evidence in this regard.
[45]
I therefore find that Ms. Isaacs fell when she landed on the
sidewalk after jumping from the bus. She did not fall after taking a step on
the sidewalk.
[46]
The second issue to be determined on the facts is why Ms. Isaacs
jumped from the bus, which resulted in her falling upon her landing. Again, Ms. Isaacs
testified that her reason for jumping was the distance between the bottom step
at the front of the bus and the sidewalk. Therefore the distance between the
curb and the front door of the bus after it stopped must be determined.
[47]
If the distance of the front door of the bus from the curb was greater
than ten inches, there is potential negligence on the defendants. As stated above,
Translink has in place guidelines for a standard bus stop that state that buses
should be stopped parallel to the curb and within six to ten inches of that
curb. However, the defendants negligence is not to be measured against a
general policy, but rather must be considered in light of the circumstances
that presented themselves at the time of this specific accident (Heyman v.
South Coast British Columbia Transportation Authority (c.o.b. Translink),
2013 BCSC 1724 at para. 68).
[48]
Although the defendants policy directive is not determinative, in light
of these specific circumstances I find that the policy of stopping less than
ten inches away from the curb reflects the standard of care required by a
reasonably prudent bus driver. Thus, if the distance between the front door and
the curb was greater than ten inches, there would be a prima facie case
of negligence and it would be for the defendants to establish that the
plaintiffs injuries occurred without negligence on their part or due to a cause
for which the defendants were not responsible.
[49]
Ms. Isaacs evidence is that the bus came to a stop at an angle
with the front of the bus further from the curb than the back of the bus. Her
evidence was that the distance from the bottom step to the curb was 12-14
inches. In cross-examination she disagreed with the statement that the
distance was only six inches from the curb, and responded, Oh no – it was
wider, quite wide. This is consistent with her evidence that when she was on
the sidewalk after the fall, Ms. Isaacs observed that the rear of the bus
was closer to the sidewalk than the front.
[50]
I accept Ms. Isaacs evidence in this regard. I have noted that her
memory of the number of steps at the front of the bus is incorrect, as she
recalled one step at the front when there are three steps on this type of bus. However,
other than this point, her evidence with regard to the location of the bus when
it was stopped is persuasive and is consistent with the other details of the
scene at the time of her fall.
[51]
The evidence of Mr. Payne is, I find, evidence of his usual good practice
with regard to stopping the bus with the front and rear exits at an equal
distance, and six inches from the bottom of the steps to the curb. However,
his evidence with regard to this stop is internally inconsistent. He testified
that he drives the bus straight in the curb lane. He also testified that he
angles the wheel to the left prior to the stop so that he is ready to pull out
into traffic when the bus leaves the stop. On the evidence of this stop of
this bus prior to this incident, I find that Mr. Payne angled the steering
wheel to the left prior to the bus coming to a complete stop. Thus the front
of the bus and the front door were further from the curb than the back of the
bus and the back door.
[52]
I accept Ms. Isaacs evidence that the bottom step of the front
door exit was 12-14 inches from the curb, and therefore greater than ten inches
from the curb. I accept her evidence that the distance is the reason that she
jumped from the bottom step to the curb rather than going down the bottom step
to the pavement, crossing and stepping up on the curb to the sidewalk.
[53]
That the bus was parked further than ten inches from the curb is
contrary to the defendants internal policy. In these circumstances it was a
breach of the defendants standard of care owed to the plaintiff.
[54]
A further breach of the defendant Mr. Payne is that, having stopped
the bus further than ten inches from the curb, he did not warn Ms. Isaacs
of the potential hazard being the excess distance. Although he considered a
warning as he observed her moving quickly, he decided not to startle her. Given
his observations, when he saw Ms. Isaacs exiting without use of the
railing at more than 10 inches from the curb he should have provided a
warning.
[55]
The final issue is whether the plaintiff is contributorily negligent,
and how liability should be apportioned.
[56]
Ms. Isaacs has a duty of care to herself and to take care of
herself. Her circumstances at the time were that she was 82 years old, had no
mobility issues and led a relatively active and independent life.
[57]
However, her observation that the sidewalk was further from the bus stop
than expected should have prompted her to use the utmost caution when
disembarking from the bus.
[58]
Before exiting the bus and on observing the distance between the bottom
step and the sidewalk, the courses of action open to Ms. Isaacs were to
hold on to the railing and step down onto the pavement then walk to the
sidewalk; to have requested assistance from Mr. Payne to exit safely; and
to ask Mr. Payne to move the bus closer to the curb.
[59]
This raises a factual issue with regard to Ms. Isaacs exit from
the bus, specifically, whether or not she held on to the railing at the time
she went down the stairs and prepared to jump. Mr. Payne says that she
did not hold the railing when exiting. Ms. Isaacs testified at first that
she grabbed the railing and jumped but later in her evidence stated candidly
that she does not really recall if she held on to the railing before exiting.
I cannot find as a fact that Ms. Isaacs used the railing as she exited.
[60]
In determining whether or not her choice of jumping from the bottom step
to the curb contributed to her injuries and to what degree, I must consider the
factors set out in Falconer.
[61]
I must also consider the magnitude of the departure from the standard of
care. The defendants owe a high duty to passengers. While negligent, the
conduct of the defendant Payne in stopping the bus at the location further than
ten inches from the curb was inadvertent.
[62]
Ms. Isaacs had the last clear chance to avoid the injuries which
she suffered. She made a decision to jump, and in doing so breached her duty
to herself.
[63]
In the end result, each party was at fault and each contributed
equally. I would apportion liability 50% against the defendants, which are
each jointly and severally liable to the plaintiff, and 50% against the
plaintiff.
[64]
The plaintiff is entitled to 50% of her costs at Scale B unless
there are other matters of which I am unaware. If either party wishes to make
submissions as to costs, submissions may be made in writing within 30 days of
todays date with reply 15 days thereafter.
The Honourable
Madam Justice Watchuk