2008 BCSC 1388 Mott v. Welch

Before: The Honourable Mr. Justice Pitfield

Reasons for Judgment

Counsel for the Plaintiff:	C.M. McClughan
Counsel for the Defendants:	E. Lyszkiewicz
Date and Place of Trial:	October 6-9, 2008
	Vancouver, B.C.

[1] Ms. Mott seeks general and special damages because of injury to the sacral-lumbar area of her back sustained when she collided with an armrest while seating herself on a bus owned by the Greater Vancouver Transportation Authority and operated by Ms. Welch.

[2] Ms. Mott says that the bus was operated in a negligent manner. The defendants say that the injury resulted from Ms. Mott's failure to take proper precautions for her own safety.

[3] The principles which apply in this case involving a Public Transportation Authority were summarized by Barrow J. in McNaught v. Alblas, 2006 BCSC 535 as follows:

[3] The parties do not disagree as to the applicable law. It is appropriate to first note the comments of Hudson J. in Day v. Toronto Transportation Commission, [1940] 4 D.L.R. 484 (S.C.C.) where he wrote:

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] The most recent statement of the law from the Court of Appeal in this province is found in Wang v. Harrod (1998), 48 B.C.L.R. (3d) 199 [Wang]. The law as there explained was conveniently summarized by Humphries J. in Lawson v. British Columbia Transit Authority, 2002 BCSC 1438 [Lawson]. There at para. 18 she said this:

…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.

[4] To the foregoing, I would add and endorse the observation made by McLachlin J., as she then was, in Planidin v. Dykes, [1984] B.C.J. No. 907 where, in respect of a case involving a fall on a bus, the learned judge said: "In my view, these cases illustrate that each case must be decided on its own facts".

[5] I do not doubt that Ms. Mott did her best to recall the circumstances surrounding the incident. However, I am not persuaded that her perception of that which transpired conforms to the reality. In the circumstances, I find that the injury Ms. Mott sustained was not caused by negligence of the bus operator or the Transit Authority.

[6] Ms. Mott boarded the bus in question in White Rock on February 8, 2005, soon after 3:00 p.m. destined for Vancouver. She was wearing high-heeled shoes, and carrying a violin case attached by a strap to her back, a small suitcase containing binders of music, and a purse. She deposited her fare while standing in the stairwell of the bus. The bus began to move before she left the stairwell to take a seat. She gripped the fare box in order to maintain her stability. Ms. Mott testified to uttering a remark that reflected her surprise at losing her balance. She said nothing to the driver.

[7] Ms. Mott emerged from the stairwell and made her way to a courtesy seat behind the driver on the left side of the bus. She sat down in the rear-most of the two seats facing the centre-line of the bus. To her right was an open space, and further to her right was a collapsible chair with the seat and armrests in the down or extended position. The collapsible chair is affixed to the wall of the bus in an area set aside for riders in wheelchairs. This configuration is unique to buses of the kind on which Ms. Mott was riding and which are used by the Transit Authority for the longer highway runs between White Rock and downtown Vancouver.

[8] Ms. Mott placed her violin on the floor beside her, and placed her suitcase under the collapsible seat to her right. She placed her purse on the floor.

[9] When the bus next stopped, an elderly passenger moved from a seat in the rear of the bus to the front in order to depart. There is no rear exit in the kind of bus Ms. Mott was riding. After the departing passenger had passed her, Ms. Mott stood up. She held the floor-to-roof stanchion adjacent to the courtesy seat with her right hand. She rotated clockwise so that her back was to the collapsible seat. As she did so, she changed her grip in order to hold the stanchion with her left hand. Ms. Mott let go of the stanchion she had been holding with her left hand as she proceeded to sit down in the collapsible seat and before she was seated. Ms. Mott testified to her recollection that the bus accelerated from the bus stop causing her to lose her balance and to descend with some force. The sacral-lumbar portion of her back struck the plastic armrest affixed to the left side of the collapsible seat. A photograph of the injury taken later in the day indicates that the point of contact was directly on the sacral-lumbar area or the coccyx, and not to the left or right of the spine. Ms. Mott made no mention of the incident to the driver.

[10] Ms. Mott rode the bus into downtown Vancouver, transferred to another bus that would take her to her destination where she would give music lessons to one or more students, and then continue to a rehearsal or concert with her string quartet. She then returned home later in the evening. By that time bruising in the contact area was apparent and stiffness and discomfort prevailed.

[11] Ms. Mott first visited her physician on February 10, 2005. She notified the Transit Authority of the incident and lodged her complaint. It was not until February 23, 2005, fifteen days after the incident, that Ms. Welch was interviewed by her supervisor or manager with respect to the incident and asked to complete an incident sheet. Ms. Welch advised her supervisor and testified in this court that she had no recollection whatever of the incident described by Ms. Mott, or of Ms. Mott as a passenger.

[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.

[20] The action is dismissed. In the absence of agreement, the parties may speak to costs.

"Mr. Justice Pitfield"

Citation:	*Mott v. Welch,*
	2008 BCSC 1388