COURT CASES on BUS PASSENGER ACCIDENTS
WAIVERS of LIABILITY
In Niedermeyer v. Charlton, the Plaintiff was seriously injured as a passenger on a tour bus, and brought an ICBC claim for damages. Prior to her trip to Whistler, she signed a waiver of liability, which included activities at Whistler, in addition to travel to and from Whistler. The Defendant bus driver admitted negligence, however the waiver was upheld by the Court, thereby dismissing the Plaintiff’s claim. The decision is currently under appeal. The Court of first instance commented that:
[80] In my view, the Release is a clear and relatively easy to read document. Although some of the print is small, large capitalized portions of the Release draw attention to the important features of safety, assumption of risks, release of liability and waiver of claims. A reasonable person would recognize the purpose and extent of the document, including the connection between the release and travel to and from the tour site.
[81] I have concluded that the defendants were not obliged to point out the waiver clauses, with specific reference to the bus transportation to and from the tour site. There were no distinct features of the bus trip as opposed to the other zip line activities that should have been brought to the plaintiff’s attention.
[93] I have considerable sympathy for the plaintiff due to the injuries sustained in the accident. The plaintiff is entitled to some benefit as an insured person under Part VII of the Act. However, the plaintiff is not entitled to recover damages due to the defendants’ negligence because she surrendered that right when agreeing to the waiver and release of all claims as a condition of being permitted to use the defendants’ zip line facility.
WHEN THERE is NO ACTUAL COLLISION
In Erickson v. Sibble, the Plaintiff was injured as a passenger on a bus, and brought an ICBC claim for damages. The bus driver had stopped abruptly in an effort to avoid running a red light, at which point the Plaintiff was injured. There was no impact with another vehicle. The Court held that the bus driver was 75% liable for the accident.
[67] Mr. Sibble’s sudden and vigorous braking caused the bus to come to an abnormally abrupt and jarring stop. The stop was not in the nature of a movement that would fall within the normal range reasonably expected by the transit travelling public, as was the case for example in Sawatsky v. Romanchuk, [1979] B.C.J. No. 964 (S.C.). There was no reason, such as a pedestrian stepping out in front of the bus or a vehicle unexpectedly appearing or threatening to appear in Mr. Sibble’s oath, so as to justify stepping on the brakes with such sudden and excessive force. Even by jamming on the brakes, Mr. Sibble was not able to stop the bus until approximately one-third of its length had intruded into the Intersection.
[68] I find that Mr. Sibble glanced into his interior mirror as soon as he had made the stop to ensure that his passengers were safe precisely because he knew that the stop had been abnormally abrupt. It is not clear why at that time he did not see evidence of Ms. Erickson’s mishap.
[69] The evidence supports a finding that had Mr. Sibble been maintaining a proper lookout and exercising due care and attention as he advanced on this major intersection, he would not have been “caught short” in the sense of not having sufficient time to safely stop or proceed through safely before the light turned red. The evidence as a whole supports the conclusion that he failed to exercise the due care and attention and otherwise conduct himself in a manner reasonably expected of a prudent bus operator in all of the circumstances. Stated another way, I find that the Accident would not have occurred just the same had Mr. Sibble acted in accordance with his standard of care in discharge of the high duty that he owed to Ms. Erickson.
In Prempeh v. Boisvert, the Plaintiff was standing, and holding onto a metal handle, when the bus driver braked very hard in order to avoid a collision with cars ahead of him. This caused the Plaintiff to fall down, and suffer injuries. The Court ruled that the bus driver was fully liable for the collision.
[22] Mr. Boisvert was required to brake hard to avoid hitting the two vehicles that had stopped on the roadway in front of the bus he was operating. The first of the vehicles had stopped to turn left on Hamilton Street. The second car stopped behind the left-turning vehicle without a collision and without accompanying honking or screeching of brakes. It can reasonably be inferred that this occurred within a time frame that should have permitted a reasonably prudent user of the road driving behind those vehicles an opportunity to react and brake without incident. The application of the brakes was not a reaction to an emergency or unexpected hazard.
[23] Moreover, Mr. Boisvert properly conceded that, regardless of an abrupt or unexpected stop of a vehicle ahead, in order to prevent accidents prudence mandates that at all times a bus driver drive defensively and maintain a safe cushion or certain distance from a vehicle travelling in front of the bus. This is precisely to be able to stop safely in the event of an unexpected manoeuvre by that vehicle.
[24] I cannot find with precision whether the sudden and hard application of the brakes occurred because Mr. Boisvert was travelling too rapidly, not maintaining a diligent look-out or because he failed to maintain a safe distance from the vehicle in front of him. However, in weighing all of the evidence I have concluded that Mr. Boisvert’s sudden and vigorous application of the brakes, in the context of all the circumstances in this case, establishes a prima facie case of negligence against Mr. Boisvert. It is not conduct attributable to a reasonably prudent bus driver.
[25] Having found a prima facie case of negligence the onus is upon the defendants to establish that Mr. Boisvert was not negligent or that the incident was attributable to some specific cause consistent with the absence of negligence on his part.
[26] I note that Mr. Boisvert’s assertion at his examination for discovery that he could have stopped smoothly but the bus brakes on the new trolley bus “grabbed” and caused a “hard stop” is no answer to this claim.
[27] Mr. Boisvert was an experienced bus driver. The plaintiff was entitled to expect that he would operate the bus in a safe, proper and prudent manner. The plaintiff cannot be expected to assume any risk associated with the operation of the vehicle which could not reasonably be anticipated by a passenger. The usual braking of a driver as he moves through traffic would not cause a passenger to be thrown to the floor so violently. Moreover it is well established on the authorities that the responsibility of a public carrier extends to ensuring that its modes of conveyance permit the bus to be operated in a safe and proper manner: Visanji at para. 32.
[28] I have considered all of the authorities provided by both parties. Though useful as providing guidance on the governing principles, each case turns on its own facts. I note that unlike the circumstances in Lalani v. Wilson, [1988] B.C.J. No. 2408 (Q.L.) (S.C.), upon which the defendant relies, the bus driver here was aware that the plaintiff had fallen – the possibility of injury was self-evident. Mr. Boisvert’s attention was drawn to such a possibility at the time of the incident and in compliance with the bus operator training manual he should have recorded all pertinent information regarding the incident. While the court in Lalani found it would have been unfair to shift the burden, this is not so in this case.
[29] On balance I am not satisfied that the defendants have shown that Mr. Boisvert conducted himself in a reasonable and careful manner consistent with the high duty of care imposed on those engaged in public transit. In the result, I conclude that Mr. Boisvert, however fleetingly, breached the standard of care of a reasonably prudent bus driver. I find the defendants negligent.
In Habib v Jack, the Plaintiff was in a seated position, and was injured when the bus driver went over a speed bump. The Court dismissed the Plaintiff’s claim, and discussed the area of law of bus driver liability.
[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.
[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.
[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.
In Patoma v Clarke, the Plaintiff suffered a broken wrist when thrown to the floor while on a Translink bus. The bus driver had started to proceed from a stopped position when he suddenly applied the brakes. The Plaintiff had taken a few steps after showing his bus pass, and was still not in a seated position. The Court found the bus driver liable, and the Plaintiff was awarded $38,000 for pain and suffering for effectively a two year injury.
[6] It is clear that bus drivers owe a duty of care to their passengers based on the reasonable foreseeability test. The standard of care is the conduct or behaviour that would be expected of the 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 what the driver knew or should have known: Wang v. Horrod 1998 CanLII 5428 (BC CA), (1998), 48 B.C.L.R. (3d) 199 (C.A.).
[7] I note that the standard to be applied to the bus driver is not one of perfection. Nor is the transit company in effect to be an insurer for any fall or mishap that occurs on a bus.
[8] The first question I must address is whether Samuel Clarke met the standard of care he owed to his passengers as he pulled his bus away from the bus stop that August night. The plaintiff says he did not, for two reasons: First, he began to roll away from the bus stop before Mr. Patoma took his seat, and without warning him that the bus was about to move. Second, the plaintiff says the bus driver did not perform an adequate visual check before beginning to pull out, and therefore did not see the two pedestrians crossing in front of the bus until it was too late to avoid a sudden stop.
[9] I will deal with each of the alleged breaches of the standard of care in turn. The first is whether Mr. Clarke should have waited for Mr. Patoma to take his seat before pulling out, or at least warned him that the bus was about to move.
[29] Mr. Clarke in all respects struck me as a careful and prudent driver who takes his responsibilities as a bus driver seriously, but I find that Mr. Clarke in this instance, however fleetingly, breached the standard of care owed to Mr. Patoma, and the other passengers. It was dark, but the area was relatively well lit, according to the testimony of most of the witnesses. I note that there was no evidence that Mr. Clarke was rushing or pulling out too quickly because he was behind schedule.
[30] In finding that Mr. Clarke was negligent in failing to check properly to his left before pulling out, I distinguish this case from Fung v. British Columbia Transit, (8 April 1994), Vancouver Registry No. B922434 (B.C.S.C.) a 1994 decision; and Shishvan v. Wood, 2005 BCSC 1304 (CanLII), 2005 BCSC 1304. In those cases, the bus was already in motion and travelling along when a pedestrian jumped or stepped out into traffic unexpectedly from the curb, leaving the driver no option but to stop suddenly to avoid hitting the pedestrian.
[31] In the case at bar, the driver set the bus in motion, albeit ever so slightly, without noticing two pedestrians already in the street and moving to cross in front of the bus, causing him to have to brake suddenly.
In Mott v Welch, the Plaintiff had been standing and holding onto the floor to roof stanchion, when she decided to sit down. At the moment she decided to do so, and before she became seated again, the bus accelerated from a stop sign, and she fell to the floor, injuring herself. The Plaintiff’s claim was dismissed.
[12] Ms. Mott testified that she did not speak to the driver at the time of the incident because she thought she was not approachable. She testified that she formed that opinion by watching Ms. Welch interact with other passengers. The interaction which Ms. Mott described occurred after the incident. There is no reason why, in the event Ms. Mott thought that Ms. Welch had operated the bus in an irresponsible manner, she could not or would not have mentioned it immediately upon sustaining the injury of which she complains.
[13] Ms. Welch is an experienced driver who has worked with the Transit Authority for approximately 20 years. No evidence of her driving record, whether good or bad, was adduced. There is insufficient evidence from which I am able to assess traffic conditions or driving conditions generally, or from which to conclude that the motion of the bus at the time of the mishap was out of the ordinary.
[14] Ms. Mott testified that she was a frequent bus rider. She readily acknowledged that she was aware that buses were subject to motion against which a standing rider had to take reasonable precautions.
[15] The bus was well-equipped with stanchions and overhead grips in the area where Ms. Mott first sat and the seat to which she moved.
[16] The evidence indicates, and I find, that the bus was travelling on a four-lane road with two lanes in each direction of travel. The centre lane in the direction of travel was reserved for through traffic. The curb lane was available for parking. There is no evidence that there were restrictions against parking at the time that this mishap occurred. While neither Ms. Welch nor Ms. Mott had a specific recollection of traffic conditions at the stop where the mishap occurred, I am prepared to infer and find as a fact that vehicles were parked in the curb lane ahead of the bus stop zone. That is the reasonable inference given that the bus swayed upon, or soon after, leaving the stop. The swaying motion is consistent with the movement of the bus from the curb lane to the centre through lane.
[17] Ms. Mott testified to her recollection that the bus suddenly accelerated. I find that contact with the left armrest of the seat is inconsistent with acceleration which would have tended to cause Ms. Mott to move to the rear of the bus toward the right-hand armrest. The fact Ms. Mott hit the left armrest is more consistent with deceleration of the bus which caused her body to move from the centre of the seat where she intended to sit, to a position over the left side armrest.
[18] There is no evidence from any rider on the bus who observed the incident or the motion of the bus at the time the mishap occurred.
[19] On the evidence that has been adduced, I conclude and find as a fact that the sole cause of the accident was Ms. Mott’s omission to take precautions to ensure her own safety on a moving bus. She omitted to hold the stanchion that was readily available to her as she sat down. I am not persuaded on a balance of probabilities that the bus was operated in any manner which could be classified as negligent.
