2008 BCSC 1180 Bramwell v. Greater Vancouver Transportation Authority

Before: The Honourable Madam Justice Allan

Reasons for Judgment

(In Chambers)

Counsel for the Plaintiff	David McGivern
Counsel for the Defendants, except John Doe	Sandy Kovacs
Date and Place of Hearing:	August 13, 2008
	Vancouver, B.C.

[1] The plaintiff, Thelma Bramwell, seeks orders pursuant to Rules 39(29) and (30) and Rule 18A of the Rules of Court that: (1) the issue of liability and damages be severed; and (2) the issue of liability be determined in her favour with damages to be assessed at a later date. The trial is presently set to proceed before a judge alone on September 14, 2009 for seven days.

[2] I will refer to the defendants other than John Doe, the unidentified driver of the bus, as Translink.

Background:

[3] Ms. Bramwell deposes that she suffered an injury while getting off a bus owned or operated by Translink on October 27, 2005 at a bus stop on the west side of King Edward Avenue just past Arbutus Street in Vancouver.

[4] At the time, the plaintiff was 69 years of age. She had boarded the bus on King Edward Avenue, just east of Oak Street. In her opinion, the bus driver, who has not been identified, was in a rush and exceeding the speed limit.

[5] The plaintiff deposes that she went to the back of the bus to get off at Arbutus Street. She was not carrying anything and held onto the pole with her left hand when the doors opened. She stepped off leading with her right foot and saw a gap of one and a half to two feet between the bus and the curb. The bus had stopped at an angle so that the back of the bus was further from the curb than the front. She stretched her right foot to reach the sidewalk and found herself straddled, half on the sidewalk, half on the bus. She was also at an angle because of the downhill incline. She could not go back. She went forward and then felt and saw her knee swivel around and twist. She did not fall to the ground but grabbed for the nearby vegetation and hobbled from the bus stop to the crosswalk. The bus drove away.

[6] Mr. Koen, an instructor of bus drivers for Translink, was examined for discovery. He agreed that the bus driver should pull up to the curb within six to 10 inches and parallel to the curb. If the gap is greater, the passenger may have to step down to the road and then up to the curb which presents a potential hazard. A greater gap is not in accordance with the training manual. A stop that is not parallel is also contrary to the manual. If the bus is stopped in a way with a larger gap and not parallel, the driver is supposed to give a warning to a person who is alighting from the bus. It is the operator’s responsibility to stop the bus as they are trained to do and verbally warn of any danger.

[7] Mr. McGivern, the plaintiff’s counsel, has deposed that:

As a result of the injury to her knee from the Accident, the Plaintiff underwent an arthroscopy; a knee replacement; complications following the knee replacement of a pulmonary embolism and deep venous thrombosis. As a result of the thrombosis, she was required to take blood thinners. She also developed a bilateral ulnar neuropathy. She has been left with a 15 degree vulgous deformity of her right knee and restricted knee flexion and extension.

[8] One of the elements of negligence is whether a breach of duty by the defendants caused damage or loss to the plaintiff. In my opinion, it is improper for counsel to purport to give that evidence, which is the only evidence tendered on the issue of causation. Although Mr. McGivern states in his written argument that “she alleges that as a result of the injury to her knee” she underwent surgery and suffered complications, neither Ms. Bramwell nor her doctors gave that evidence. That omission is, by itself, sufficient to dismiss the application. However, I will deal briefly with the issue of severance.

Should the issues of liability and damages be severed?

[9] The plaintiff’s notice of motion seeks an order that the issue of liability and damages be severed pursuant to Rule 39(29) and (30):

Trial of one question before others

(29) The court may order that one or more questions of fact or law arising in an action be tried and determined before the others, and upon the determination a party may move for judgment, and the court, if satisfied that the determination is conclusive of all or some of the issues between the parties, may grant judgment.

[10] Rule 39(30) deals with different modes of trial, which is not an issue in this case.

The relevant law:

[11] There is ample authority for the proposition that an applicant must establish that there exist extraordinary, exceptional or compelling reasons for severance, and not merely that it would be just and convenient to order severance: MacEachern v. Rennie, 2008 BCSC 1064; Hynes v. Westfair Foods Ltd., 2008 BCSC 637; and Westwick v. Culbert, [1992] B.C.J. No. 2121.

[12] It is true that some recent cases have held that a judge’s discretion to sever an issue or issues is not restricted to “extraordinary or exceptional circumstances”: Nguyen v. Bains, 2001 BCSC 1130; Enterprising Minds Technology Inc. v. Lululemon Athletica Inc., 2006 BCSC 1168. However, there must be some compelling reasons to order severance, such as a real likelihood of a significant savings in time and expense.

[13] Mr. McGivern relies heavily on Vaughn v. Starko, [2004] Y.J. No. 50, a decision of the Yukon Supreme Court. In that case, the plaintiff sought a determination of liability pursuant to Rule 18A with damages to be assessed at a later date. Gower J. rejected the defendant’s argument that there must be extraordinary, exceptional or compelling reasons for a severance of liability and damages. He drew a distinction between applications under Rule 39(29) and Rule 18A. He concluded at para. 48 it would not be unjust to decide the issue of liability on a summary basis and that it would be appropriate to sever liability from the issue of damages. Because the application was made under Rule 18A, he found that it was not necessary to apply the heavier onus for severance that Rule 39(29) imposed.

[14] With respect, I do not agree with the analysis in that case. Rule 18A is a method of trying a case summarily. The issues in determining whether Rule 18A is suitable are (1) whether it is possible to find the facts necessary to decide the issues of fact or law; and (2) whether it would be unjust to decide those issues summarily. On the other hand, Rule 39(29) provides the Court with the discretion to try one question of fact or law before another and give judgment. A determination of an application for severance must be informed by the case law that relates to the issue of severance, not to the issue of disposing of an action summarily.

[15] In an earlier case, Legrand v. Canning and Canning, 2000 BCSC 1633, Scarth J. dealt with a severance application brought under Rule 18A. He concluded that the plaintiff had not established extraordinary, exceptional or compelling reasons for severance. In that case, the liability issues were not plain in the circumstances and there was a further issue of whether the plaintiff was contributorily negligent. Evidence relating to the severity of the impact in question was relevant to the issues of liability and quantum.

Conclusion:

[16] In this case, there are no compelling reasons for severance. I would decline to sever the issues of liability and damages for additional reasons. First, there is no evidence as to the causal link the manner in which Ms. Bramwell alighted from the bus and her injuries. Certainly Mr. McGivern’s affidavit is inadmissible on this issue. Second, a major issue will be the credibility of the plaintiff with respect to the issues of liability – e.g., when she saw the gap, why she stepped out onto the curb instead of onto the road, et cetera. Third, the plaintiff’s credibility may also be in issue with respect to the damages that resulted from any injury she incurred as a result of her mishap. The defendants say that there is no evidence with respect to the mechanism of injury. Mr. Kovacs also submits that there is also a question as to whether the plaintiff continued to have residual mild right leg weakness as a result of suffering a stroke 15 years ago.

[17] In my view, severing liability and quantum and summarily dismissing the liability issue would hinder rather than facilitate a fair disposition of the issues in this action. In all the circumstances, I conclude that it would not be appropriate to sever the issues of liability and quantum.

[18] Costs will be in the cause.

“M.J. Allan J.”

_______________________________

The Honourable Madam Justice Allan

Citation:	*Bramwell v. Greater Vancouver Transportation Authority,*
	2008 BCSC 1180