This 93 year old personal injury claimant completely ignored medical advice that he not travel on public transportation unassisted and injured his right shoulder after trying to exit a moving bus (Bideci v. Neuhold, 2014 BCSC 542). There is however prima facie negligence against public carriers and the driver was found 2/3 at fault for not looking carefully enough in his rear-view mirror before putting the bus in motion.
The claimant was awarded $35,000.00 for his pain suffering, which took into account his failure to follow proper medical advice. The claimant was described as a “feisty” individual and was frequently argumentative on cross-examination at trial denying much of his prior medical history.
The Accident occurred on Marine Drive in West Vancouver at the Park Royal Towers bus stop, west of the Park Royal Shopping Centre. The claimant fell while in the process of standing up from the seat he had been occupying on the bus. The driver was found to have left the station without seeing that the claimant intended on existing the bus.
The claimant was not supposed to use the conventional transit system, such as buses, unassisted due to “severe osteoarthritis with uneven balance that increases his risk of fall and fracture, also due to cardiac problem… history of dizziness”. At the same time the standard of care required is higher when the driver knew or ought to have known that the passenger was handicapped or elderly: Wong v. South Coast British Columbia Transportation Authority, 2013 BCSC 1118 at para. 39.
The legal duties of a bus driver were summarized in Prempeh v. Boisvert, 2012 BCSC 304 at paras. 15-20:
[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.
It is important to understand however that a bus driver in British Columbia is not an insurer for every fall or mishap that occurs on a bus. In finding the bus driver mostly to blame the judge was of the view that the bus driver did not look carefully enough in his rear-view mirror before deciding to perform his final outside mirror check, which preceded his putting the bus in motion. Accordingly, the judge concluded the bus driver had not satisfied the burden on him to answer the prima facie case of negligence and he was found liable for the Accident.
Accordingly, the court apportioned liability two thirds as against the bus driver and one third as against the injury claimant.
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Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A., LL.B.