Utting v. Coast Mountain Bus et al Date:, 2014 BCPC 86

Citation: Utting v. Coast Mountain Bus et al Date: 20140425 2014 BCPC 0086 File No: C12212 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: KIM UTTING CLAIMANT AND: COAST MOUNTAIN BUS COMPANY LTD., PEPY CORDICK, SOUTH COAST BRITISH COLUMBIA TRANSPORTATION AUTHORITY known as TRANSLINK DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DYER Counsel for the Claimant: G. Fraser

Counsel for the Defendants: S. Somers Place of Hearing: Port Coquitlam , B.C. Date of Hearing: April 25, 2014 Date of Judgment: April 25, 2014 [ 1 ] THE COURT: The claimant, Kim Utting, has commenced this action against the defendants seeking to recover monetary damages alleging that on April 15th, 2010 while a passenger in a bus operated by Coast Mountain Bus Company and driven by its employee, Pepy Cordick, she was injured by reason of the negligent driving of Mr.

Cordick. [ 2 ] She alleges that he drove over a protrusion or something on 225th Street in Maple Ridge while exceeding the speed limit and caused the bus that he was driving and in which she was a passenger to move upwards projecting her in the process into the air, a distance she says of some six inches, and further alleges when she landed back on her seat she injured her hip, neck and back area. [ 3 ] I am not asked to assess monetary damages in this case.

The sole issue for my determination is whether the defendants were negligent, and if so, to what extent. [ 4 ] A related issue is whether the claimant bears any responsibility for her own injury as well. [ 5 ] The defendants in their reply deny they were negligent and allege the claimant was, for example, negligent in failing to hold on or brace herself at the material time. [ 6 ] The claimant called three witnesses at trial. The defendants called two witnesses: the driver, Mr.

Cordick, and as well an expert however in the employ of the defendant Coast Mountain Bus Company, a Frank Chiaritzia, a fleet inspector. [ 7 ] I will deal with the claimant's evidence first, thence her witnesses, and thence the evidence called by the defendants. [ 8 ] Mrs. Utting is now age 54.

She is 4 feet, 11 inches tall, and weighed 130 pounds on April 15th. [ 9 ] In 2010, she worked as an executive assistant in Vancouver and while she owned a car, travelled to her job on weekdays by bus to the Westcoast Express train terminal just off the Haney By-pass and either Callaghan Avenue or 223rd Street and then took the train to and from work. [ 10 ] Each morning when working, she boarded the bus on 116th Avenue at Burnett Avenue in Maple Ridge at between 6:31 and 6:33 a.m. There is no issue that she was at all material times a paying passenger.

Her usual route was 116th Avenue to its intersection on 225th Street, thence to River Road, and once on and travelling westbound on River Road, a left turn onto 223rd Street into the train terminal off the Haney By-pass. This trip usually takes about four minutes. [ 11 ] The bus typically meets a train departing the station at 6:44 a.m. The walk from where the bus drops her to the train takes her typically about a minute and a half.

If she misses the train, and she has done so, she has to wait some 30 minutes for the next train. [ 12 ] On the morning of April 15th, 2010 the bus did not take its normal route along the Haney By-pass in the right lane of two westbound lanes. The driver missed the left turn onto 223rd Street (or Callaghan Road) and never made it into the fast or turning lane on the Haney By-pass to do so. [ 13 ] Ms. Utting recalled several passengers calling out that the driver needed to be in the left lane when he was not, or he had missed the left turn onto 223rd Street, which he did. So Mr.

Cordick, the driver, went around up the Haney By-pass right onto the Lougheed Highway, south on 224th Street, left on North Avenue to go east, right on 225th Street to go south down a long hill and thence back to River Road and the Haney By-pass for another try. [ 14 ] As I have said, 225th Street runs downhill and Ms. Utting described it as very steep and fairly bumpy. It is a paved, two-lane residential road. Ms. Utting recalled the driver appeared to be driving very fast down 225th Street on this go-round manoeuvre, picking up speed as he went down the hill on 225th.

She was sitting in the very back of the bus on the right side as one looks down the bus from the front. She sat on a fold-up seat near the aisle. Her feet were not on the ground and she held onto the rear handle of the seat ahead of her at all material times. Someone sat to her left and as well ahead of her. Her seat was not equipped with a seatbelt. [ 15 ] As the driver sped downhill on 225th Street, she believed he hit a bump or dip in the road just above where a street called Brickwood Close meets 225th Street from the left or east.

This caused her to be elevated off her seat into the air, jolting her right arm as she did so. Her head flew back as she came down and she heard a loud crack behind her left ear as she did so. She estimated that she was airborne some six inches above her seat, all the while holding the handrail ahead of her. Her right shoulder was wrenched in the process.

She held her purse in her left hand. [ 16 ] Based on her own 30-year driving experience including some three test runs she did before trial on 225th Street in her own car, she estimated the bus was doing 58 to 60 kilometres per hour in a 50 kilometre per hour posted area on 225th Street when it hit the bump or dip. She saw several other people get elevated off their seats at the time including the man next to her. She overheard a few people say, "That was crazy".

One person announced, "Who needs to go to the PNE when you can take a bus?" [ 17 ] When the bus eventually arrived at the station already late, she got off, electing not to speak to the driver at that time, not wanting to miss her train to be late for work. Her neck was then starting to ache and was getting sore. She felt light-headed and took

longer than usual to walk over to the train, which arrived after she had been on the platform for only approximately 30 seconds. [ 18 ] On the train, she spoke to several people including one Betty Torski and spoke about the incident. [ 19 ] In cross-examination, she said when she got on the bus she recognized the driver and had seen him once before. She sat in the back as the bus was full when she got on and she took the last available seat. [ 20 ] Prior to April 15th, she had never ridden a bus on 225th Street.

She held the seat rail ahead of her to steady herself on the day in question because she knew when the bus was driving "You get bumped around a lot". She had come to expect this on buses of the sort she rode on, what I would call a small commuter-style bus. She said the bus normally got her to the station at 6:38 a.m. On April 15th after the go-round they arrived at approximately 6:41 a.m.

Nonetheless she felt on April 15th the detour took more like four to five minutes to make. [ 21 ] She could not recall how many other passengers were elevated from their seats when the bus hit the bump or dip that she described in her evidence. She did recall when the bus hit the bump or dip there was a bit of a thud when the bus came down after it was elevated. [ 22 ] Betty Torski testified as to the claimant's emotional state after the incident when she observed her on the train. [ 23 ] At April 15th she had known the claimant for some eight years. That morning she looked white, very pale, and quite shocked.

She did not look normal. She rode in with her to Vancouver and when the claimant got off, the claimant looked ill. [ 24 ] Debbie Risewig (phonetic) a legal secretary working in Vancouver on April 15th, 2010, rode the same bus that morning with the claimant. She had been taking this Bus No. 45 to work since 2001. She got on ahead of the claimant at 244th Street and sat at the front in an available seat as it was less bumpy, an easier ride, as she suffered from motion sickness. [ 25 ] She recalled that on April 15th the bus driver missed the left turn to the train station on 223rd Street.

The detour took them to 225th Street, a bumpy road with quite an incline. This was the only time she went down this road in a bus. [ 26 ] She recalled the driver was going quickly on the downhill on 225th Street. She did not recall being lifted out of her seat on 225th Street and heard no noise. The bus usually arrived five minutes before train time which was 6:44 a.m. as I have said. Ms. Utting spoke to her at the station on arrival and said she had hurt her neck. She had ridden in the back of the same type of bus before and said one could get "launched" there.

She had experienced this both before and after April 15th, 2010. Now when she sits there, she hangs on if she knows what is coming. In the front "You don't really feel it" according to her testimony. I assume she meant if and when the driver hits a bump or dip. She recalled passengers talking when the driver missed his left turn on 223rd Street, but not what they said. She could not recall how long it took the driver to circle around on April 15th, but said they probably did make their train on time. [ 27 ] Chris Moubert (phonetic) rode the bus with the claimant on April 15th and sat immediately ahead of her.

Normally, he liked to sit closer to the front as it was more comfortable. In the back, he said it could be quite a bumpy ride and the further back one sat on such a bus the bumpier the ride could be. [ 28 ] He recalled just before the driver missed the left turn to the train station a lot of people advising the driver he had to go left.

After he missed the turn, people were advising him of the best route for a detour which he took, namely, down 225th Street as I have described above. [ 29 ] He believed the bus driver was speeding on the bumpy road and hill down 225th Street, and estimated that the driver then hit a speed of 60 to 65 kilometres an hour. He had been driving a motor vehicle for some 22 years and I understood that he gave his estimate based on what he recalled of the ride in issue as well as his own driving experience over the years. [ 30 ] He too recalled feeling a jolt on 225th Street.

He was briefly lifted off his seat into the air one to two inches. In contrast to the claimant, he is some 6 feet tall and his feet were on the ground and he was able to somehow anchor them during the jolt. He saw the majority of the passengers ahead of him lifted and jolted around and look at one another and appear surprised or annoyed. He described the dip at the same place on 225th Street as the claimant had in her testimony.

He estimated it took the driver three to four minutes to do the detour and return to the train station. [ 31 ] On cross-examination, he said he saw the claimant board the bus and sit directly behind him. He was sitting in an aisle seat. He had never travelled down 225th Street in a bus before April 15th. He assumed the bus, which was initially on time, fell behind

schedule when it had to do the detour and that the driver missed the left turn as he was not familiar with the route. There seemed to be a new driver on the bus every few weeks. He agreed on the day in question it was unsafe for the bus driver to try to make the left hand turn onto what he called 223rd Street from where he was on the Haney By-pass. But he felt he had ample time to get into the left hand turning lane once he was on the road in question.

He felt that buses frequently went over bumps and potholes which was something he had experienced regularly as a passenger. [ 32 ] He had sat in the seats the claimant occupied on April 15th before and said they were different from his aisle seat. They had no headrest. [ 33 ] I turn now to the evidence of the defendants. [ 34 ] Frank Chiaritzia testified. He was qualified as an expert and permitted to testify providing both opinion evidence and factual evidence as to: 1. How the suspension system in the type of bus in which the claimant rode on April 15th, 2010 operated and how the

various components worked; and 2. How they would affect the type of bus she rode in and the passenger ride that would occur with the bus in use with a full 20-passenger load. [ 35 ] I did not qualify or permit this witness to testify and provide any opinion on whether or not it was possible for a rider to leave her seat six inches if a bus of this type hit a dip in the road at a certain speed. No useful purpose will now be served as to why I did not permit or find that defence counsel had qualified this witness on this issue.

Suffice it to say I could not be satisfied he had either the expertise to do the necessary calculations or if done that his opinion would be of any material use to me as the trial judge on the liability issue. [ 36 ] This witness started working on buses in 1981 and at trial continued to do so as a fleet inspector with the defendant Coast Mountain. He said he had spent 18 years of his working life working only on buses, nothing else, including all aspects of their repair. He was familiar with the air suspension system in buses of this sort.

Part of his job involved inspecting buses on a spot audit basis to ensure that contracted mechanics were properly doing their jobs. He also road tested buses. [ 37 ] He testified that he had detailed experience with the workings of bus suspensions which were heavier than a car suspension and function differently. [ 38 ] In cross-examination on his qualifications, he said he could testify as to the travel in a bus suspension system or the movement in a bus chassis upwards (or not) on a smooth or bumpy road surface.

He stated he had never been earlier qualified as an expert in any trial court in British Columbia. [ 39 ] He was aware that the bus the claimant rode in had been inspected -- not by him -- six months before April 15th, 2010 and found to have in essence a clean bill of mechanical health. He had inspected it one and a half years later and it was then fine. All its maintenance records that he had reviewed indicated its suspension system was okay. [ 40 ] His undated report was marked as Exhibit 4 at trial.

Therein he stated that he had inspected 225th Street from North Road to River Road, both walking it and driving it on one day in March 2013 which of course is some almost three years after the incident in issue in this action. [ 41 ] His report does not expressly state what he found this day but part and parcel of it are a series of photos he or some representative of the defendants obtained of or on 225th Street found at Tab 19 of the defendants' document binder.

Each is marked "Copyright Google Earth 2013". [ 42 ] The first shows a view looking down or south on 225th Street taken at a point just above or north of North Road from the centre line on 225th Street. The second is the same view but taken it would appear about at the centre line of North Road where it meets 225th Street. The elevation is shown here to be 21 metres. The 13th photo is taken on 225th Street just above where 116th Avenue enters on the left and appears to be looking south towards River Road, not shown on the photo.

The elevation marked on this photo is 10 metres or 31 metres or approximately 100 feet lower than where the shuttle bus on its first re-route first turned onto 225th Street. [ 43 ] These facts give some indication of the extent of the slope of 225th Street; however I have no evidence as to the distance between images 2 and 13 referred to above. [ 44 ] I should state that these photos are not of the highest quality and do not fairly or truly show in my view what the road surface was like on 225th Street on the date in 2013 when they were taken whenever that may have been, or more importantly what it might have been like several years earlier on April 15th, 2010.

At best, they give me a sense of the slope of the hill on 225th Street. [ 45 ] Mr. Chiaritzia testified that had the driver heard any loud bang or noise or hit a bump, that it would be recorded on a daily inspection sheet. He was of course really telling me what a driver was supposed to do according to his employer's rules and not what every driver would have religiously done I expect. No such report was ever made by Mr. Cordick, for example, mention of a bang or a loud thud in transit on the day in question.

If there was such a noise, it would mean that the bus' leaf springs were overworked according to his report thereby allowing the bus' axle stops to hit the frame rails which would happen if the bus hit a large void or pothole I understood on the road surface. [ 46 ] I would make a few observations about this witness' report such as it is. [ 47 ] It seems to assume that because the driver made no note on April 15th, 2010 of an incident or inspection report of a noise like a thud that there was not one and therefore the axle stops did not hit the frame rails or bottom out.

He overlooks the possibility that the driver may have: (

a) Not heard a noise at all; or (

b) Heard one but forgot to note it at the end of his shift here some five hours later; or (

c) Heard a noise, knew he ought to mention it, but chose for his own reasons not to. [ 48 ] The report to some limited extent explains how the bus' suspension system operated but does not exclude at all the possibility that on April 15th this bus could have bottomed out or if it did not, at least bounce on a bump or dip to such an extent that passengers would actually leave their seats.

[ 49 ] I generally found Mr.

Chiaritzia's evidence to be unhelpful, especially as he is hardly an objective expert being employed as he is by one of the defendants in the action, and for whatever reason did not inspect the bus in question close to April 15th, 2010, the date of the alleged incident which the claimant had reported to them that morning. [ 50 ] I find that on the morning of April 15th, 2010 the claimant had provided the defendants by email with all the information they could reasonably require to fully investigate this matter including obtaining a detailed statement from their own driver had they wished to do so.

No real explanation is given as to why he did not inspect the bus until much later. [ 51 ] In the inspection history printout in the defendants' trial binder at Tab 3 it would appear the bus in question (No. 233) was inspected in some unknown way on March 4th, March 9th and twice on March 11th and on April 14th, the day before the accident for a radio issue of some sort. The codes on this document were never clarified by Mr. Chiaritzia in his evidence or by any other witness called by the defendants.

Hence, I have no idea what was found or done on these dates including importantly relating to the bus' suspension. [ 52 ] The April 14th, 2010 entry shows an odometer reading of 316,697 kilometres on the bus in issue. I conclude that this figure is accurate and hence on April 15th, 2010, Bus No. 233 in which the claimant rode could not fairly be described as a "spring chicken". I do not know where it was made or first came into the defendant's fleet of buses. That evidence was not led. [ 53 ] On cross-examination, Mr.

Chiaritzia agreed that the folding seat in which the claimant sat on April 15th was close to the rear wall of the bus with very little clearance between it and the back of the seat when in use. The back of the folding seat was pretty much up against the back wall of the bus and located some approximately 61 inches behind the centre line of the rear axle of the bus. The front of the folding seat was therefore approximately 30 inches from the same centre line on the rear axle.

He agreed that if the bus when underway hit hard or bottomed out, there could be a loud noise and a harsh jarring effect, that is, the chassis was not then cushioned by the springs. This noise would be caused by the axle stops hitting the frame when the u-shaped leaf springs flattened out. [ 54 ] The bus driver, Mr. Cordick, testified at trial. [ 55 ] Starting in November 2004 he had been employed by Coast Mountain as a bus driver and had been driving what he called shuttle buses continuously since then.

I note that a shuttle bus is to be distinguished from the longer, larger buses often seen for example in the City of Vancouver and nowadays often but not always seen with an articulated trailer-like component. [ 56 ] Mr. Cordick said that passenger safety was of the utmost importance to him as a driver and that he needed to be aware of his speed and surroundings while driving. He felt a shuttle bus generally rode fairly smoothly but did bump when the wheels hit something. [ 57 ] On April 15th, 2010 at the start of his shift at 4:22 a.m., he did a visual safety check on the bus in issue.

All in his view was okay, save one item: his wiper blades were in bad order. [ 58 ] I note there was no suggestion made by the claimant that her injury was due to some visible defect in the bus itself. Rather, she points to negligent driving as the cause of her injuries. [ 59 ] This witness described the route he was supposed to take and that he drove in the same way as all other witnesses did but they suggested his left turn off the Haney By-pass to go to the train station was onto 223rd Street whereas this witness described his turn being onto Callaghan Road.

For purposes of these reasons, Callaghan Road will be used interchangeably with 223rd Street to avoid confusion. [ 60 ] On the morning of April 15th after picking up the claimant, he testified that on purpose he missed the left turn off the By-pass at Callaghan for safety reasons. It was rush hour and the traffic on the by-pass was "crazy" and it was difficult for him to safely get into the left turning lane once on River Road or the By-pass to make this left turn safely.

He testified that very quickly after turning right off 225th Street that one needed to get into the fast lane on the By-pass to make this left turn. He recalled driving slowly with his left signal on to change lanes from the slow right lane on the Haney By-pass to the fast lane, but no one in the westbound traffic, all of which was coming at him very quickly on the morning in question, would let him into the fast lane on the By-pass from which he could then enter the designated left turn lane off it onto Callaghan.

This left turn lane was sufficient in length to allow three to four cars to line up to make their turn. [ 61 ] He then made a decision to do a re-route which I have described above as a go-round because (

a) he could not make the lane change and (

b) make his left turn safely, which two events he lumped together as "the turn". [ 62 ] He agreed at the moment he missed this turn it seemed like the whole bus screamed "You missed the turn" and three or four customers yelled out "You're going to miss the train". He recalled calling out words to the effect "We won't I assure you. We have plenty of time. I did this last week". This evidence was not put to any of the claimant’s witnesses who rode the bus. [ 63 ] He admitted the week prior to April 15th he had the same experience. He missed the left turn in the same way.

He also said that in the five years of driving bus prior to April 15th, 2010 he had never missed a turn on a route he drove. [ 64 ] I note that the claimant made reference to this earlier missed turn in her letter to Translink sent by email on the morning of April 15th, 2010 wherein she states: This is the second time this driver has forgotten to turn left to the train station. [ 65 ] On his re-route, he recalled travelling downhill on 225th Street and said nothing out of the ordinary occurred on the hill. He “covered his brake” ready to apply it as necessary to slow down while doing so.

He recalled making two quick glances at his

speedometer and probably where he did so on the hill down and said his speed was between 45 to 50 kilometres per hour, no more. The weather was dry. No comments were made to him as he went down 225th Street by the passengers. No one later told him they had been injured. He heard no loud bang, only a noise he called "chatter". He felt no bump nor did he see one or even a dip.

If he had, he would have avoided it. [ 66 ] When the passengers got off (and they did make the train on time), he recalled every one said to him, "Thank you" or "Good job" or words to this effect and he responded by stating "Have a good day". [ 67 ] He believed but was not 100 percent sure he arrived at the station after his re-route at 6:38 a.m. in time to make the train. His shift ended at 11:30 a.m. on the morning in question. He said when he first missed the Callaghan turn he was not worried about being late for the train as the week earlier he had not been.

I note this is not evidence that a week earlier he had not sped as he is alleged to have done by the complainant on April 15th, 2010. [ 68 ] In any event, he said he would not have cared if he did miss the train as his job was to get his passengers to the station and to do so safely. Throughout his direct evidence, this witness took some pains to emphasize what a safe driver he was. [ 69 ] In cross-examination he agreed that when he missed the turn in the prior week the Haney By-pass traffic was also crazy and in essence agreed that he appreciated it might be so again on April 15th, 2010.

He had measured the distance from where he turned right off 225th Street to proceed westbound on River Road and thence the Haney By-pass to the Callaghan left turn, all two-lane travel, prior to trial with his Bushnell Range Finder and testified that it was some 475 yards.

While he seemed to agree he needed to get into the fast lane once completing the above right turn off 225th Street onto River Road, he said to do so on April 15th he would have had to speed and he did not do that. [ 70 ] There is no evidence as to the posted speed on River Road or the Haney By-pass or the estimated speed of the westbound traffic on these roads that he testified would not let him in other than his evidence that these cars did upwards of 100 kilometres per hour.

He said if he got into the fast lane too soon, he could cause cars therein to slow down and seemed to suggest this could create an unsafe situation as they might try to pass the bus on the right in such case.

He suggested he usually signalled left if he could move left once he got his speed up in the inside slow lane on River Road and he estimated he normally or usually did so near or just after the Storey Green Park which is located about 275 yards east of the Callaghan left turn. [ 71 ] On April 15th he recalled putting his signal on approximately 125 yards from or east of the Callaghan left turn or I calculate after he had travelled about 350 yards westbound on River Road and the Haney By-pass.

He agreed on April 15th he could have signalled his left turn a couple of seconds earlier than he had done, but did not agree strangely that his experience in missing the same turn a week earlier led him to conclude on April 15th he ought to have signalled sooner than he did. He did not admit he had signalled late. [ 72 ] He did not move left into the fast lane sooner as people did not like to drive behind buses. Cars driving westbound on the Haney By-pass drove like they were on a Nascar race track, and hence drivers missed the Callaghan left turn all the time.

He could do nothing to avoid missing it if he was to drive safely. He seemed to suggest that westbound traffic was so bad on April 15th that even after his detour he might have missed the Callaghan left turn yet again. [ 73 ] When the claimant's counsel then suggested what he had said to his passengers as above was untruthful, he countered with testimony he did not want to upset his passengers and the less said the better.

He did agree that other than driving safely, one of his duties was to make his stops in a timely way. [ 74 ] He knew on April 15th that he missed the turn and was re-routing his passengers who were angry with him but did not agree that this reaction gave rise to a sense of urgency in him to get back to the station quickly. Again, he did not care if missed the train but would not have told his passengers that that was his thinking. [ 75 ] He agreed there were no stop signs on 225th Street from North Avenue to River Road and that it was a straightaway downhill.

He denied he was speeding on 225th Street or heard passengers exclaiming anything. If they had, he would have heard them. [ 76 ] I note that this was a common theme in this defendant's evidence, that if something had occurred he would have made a note or report of it or heard it, seemingly relying on his usual or standard operating practices more so than a memory of the specific events on the day in question.

He could guarantee the claimant and all passengers said "Thank you very much" to him when they left including the claimant at the completion of the re-route on April 15th but did not when pressed recall the claimant actually doing so but he was sure that she had. [ 77 ] In his Employee Incident Report which strangely he did not complete until June 26th, 2010, some ten weeks after the event, he noted in his handwritten description of the incident that all passengers said, "Thanks and have a nice day", not quite what he said in his testimony in cross-examination, and contrary to his own evidence where he testified that he, not they, on their disembarkation wished them all a nice day. [ 78 ] He felt on disembarking they had been afraid of missing their train and were elated that they had not done so and that was why he recalled that they had said “thank you” to him.

How he could have known what his passengers were thinking on April 15th based on his evidence is unclear to me. [ 79 ] In answer to several questions from the Court, he said he recalled the day in question apparently as he had missed the Callaghan turn and it was therefore out of the ordinary. He agreed he worked about 50 days between April 15th and June 26th, the day he completed his report however only some days on Route No. 45 in Haney where

the incident occurred. He roughly estimated he had driven this route between 100 and 200 times before April 15th, 2010. He missed theCallaghan left turn the prior Thursday or Friday before Thursday, April 15th. [80] I turn now to the legal principles that apply in this case, both relating to credibility, a very important issue in this case, and toliability. I intend to deal with the credibility of the witnesses first and thence the law with respect to liability, make findings of fact, andthence my decision.

Credibility [81] The principles which a trial judge can use in assessing a witness' credibility are very neatly summarized by Judge A.E.Rounthwaite of this Court in a criminal case, namely, R. v. Parent, 2000 BCPC 11 as follows at para. 5 where she states the same inseven separate paragraphs as follows: 1. The witness' ability to observe the events, record them in memory, recall and describe them accurately. 2. The external consistency of the evidence. Is the testimony consistent with other, independent evidence, which is accepted? 3. Its internal consistency.

Does the witness' evidence change during direct examination and cross-examination? 4. The existence of prior inconsistent statements or previous occasions on which the witness has been untruthful. 5. The "sense" of the evidence. When weighed with common sense, does it seem impossible or unlikely? Or does it "make sense"? 6. Motives to lie or mislead the court: bias, prejudice, or advantage. To consider the obvious possible motive of every accusedperson to avoid conviction would place an accused at an unfair disadvantage. As a result, I do not consider that possible motive whenassessing an accused's testimony. 7.

The attitude and demeanour of the witness. Are they evasive or forthcoming, belligerent, co-operative, defensive or neutral? [82] The same principles have application in a civil action where the proof required of a claimant is lower than in a criminal casewhere the proof is beyond a reasonable doubt. Our Court of Appeal in another well-known case, Faryna v.

Chorny (1952), (BC CA), 2 D.L.R. 354 had this to say as to the trial judge's assessment of credibility and I quote from the reasons of O'HalloranJ.A.: [11] The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test ofwhether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to anexamination of its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth ofthe story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informedperson would readily recognize as reasonable in that place and in those conditions. … [83] I will deal with the credibility of the claimant and her three witnesses first bearing these principles in mind. [84] During the trial, the claimant's three witnesses all testified before she did.

I raised as an issue with both counsel whether thisalone should be a factor in my assessment of her credibility in particular and invited counsel to review the law and make a submission onpoint in their closing argument. [85] Mr. Fraser for the claimant drew my attention to the case of Ram v.

Rai, 2012 BCSC 1718 a decision of Holmes J. on point andalso a personal injury case. [86] In Ram, supra, defence counsel invited the judge to draw an adverse inference from the fact that the plaintiff testified as thethird witness at trial having sat in the courtroom listening to the evidence of her other two witnesses first who were earlier called, but notfor some scheduling reason. This learned trial said this in paras. 36 to 38 of her reasons: [36] A plaintiff is free to call her witnesses in the order she and her counsel choose.

However, I agree with the defendants that for aplaintiff to testify after hearing other witnesses testify may affect the weight that can be given to the plaintiff's own evidence aboutmatters the earlier witnesses addressed. It may be difficult for the trier of fact to be confident that the plaintiff's account of events is herown, and is not coloured by or adapted to the preceding evidence. [37] I note also that it may be difficult for the trier of fact to appreciate and assess the full import of the evidence of supplementarywitnesses without having first seen and heard the plaintiff herself in the witness stand.

However, that observation relates to a matter ofpractice or effective advocacy, and not to one of law, evidence, or civil procedure. [38] Madam Justice Humphries discussed these problems at greater length in Gustafson v. Davis, 2012 BCSC 1576 at paras. 112-116. [87] Justice Holmes concluded, based on her overall assessment both of how the claimant gave her evidence at trial and what she hadsaid, that Ms. Ram had not borrowed from the testimony of the two other witnesses (her mother and sister) but found each witness hadtestified as to their own perspective.

She noted the dissimilarities in their various accounts and held them all to be credible witnesses. [88] Mr. Fraser indicated that Ms. Risewig and Mr. Moubert were under subpoena and were called first, his decision as counsel, asthey needed to get to work. He made a similar decision concerning Ms. Torski but said he had not spoken to her.

[ 89 ] He said the assessment of credibility according to Ram , supra , should be based on the Court's overall assessment of the evidence of all witnesses, and reminded me that Mr. Moubert's evidence of the estimated speed of the bus on 225th Street was 60 to 65 kilometres per hour, a faster speed than the claimant gave in her evidence, namely, 58 to 60 kilometres per hour. Hence, he argued while she could have borrowed from this more favourable evidence or adopted it in her own testimony; she had not done so and was therefore in essence an honest witness. [ 90 ] Mr.

Somers for the defendants submitted that the claimant should not be seen as a wholly credible witness as she told ICBC in a statement given approximately three weeks after the incident that she had left or been elevated from her seat six to seven inches, contrary to her trial evidence, and had not mentioned this fact in her email to the defendants on the morning of April 15th, 2010, but nonetheless did agree at trial this was a fairly key fact.

She did state, however, that she flew up in the air off her seat as did the person beside her and the two directly in front, nor had she stated in her letter exactly where the accident occurred, nor did any of the defendants ask her at any time to clarify any of these points. I find that had the bus company felt they were important, they could have easily emailed the claimant and asked for further details including as early as the morning of April 15th, 2010 moments after they had reviewed her email. [ 91 ] Mr.

Somers said the risk in a claimant testifying last after her other witnesses was that she could tailor her evidence to coincide with theirs. Otherwise, he did not invite me on this basis alone to draw an adverse inference or discount her credibility as a witness. [ 92 ] I find that Ms. Utting gave her evidence in a careful manner, and there is no evidence which she gave that worries me that she did somehow borrow her testimony from her other witnesses or tailor her accounts of what occurred to coincide with their testimony. I accept Mr. Fraser's speed example above as some confirmation on point. [ 93 ] Ms.

Utting made some efforts to visit the hill on 225th Street in her own car three times prior to trial as I recall, clearly with a view to assessing in somewhat of a quasi-scientific way as best she could what she felt the bus driver's speed was at the time, a point she no doubt knew that she would have to deal with in her trial evidence. She did not state as she might have done there was a dip that she found on the road.

Her three attendances are an example of the trouble she went to in an effort to get her story right in court. [ 94 ] I do not find the inconsistency in the distance she felt she was elevated from her seat at the material time, variously six inches or six to seven inches, to be material. These were clearly only rough estimates. Nor do I find the fact that she left anything out of her letter or email to the defendants on April 15th to adversely affect her credibility. She was not feeling all that well this morning and her letter was clearly constructed in that context.

One witness said she looked quite shocked at 6:45 a.m. [ 95 ] Nothing at all turns on the few omissions she made in her April 15th, 2010 letter to the defendants whether later admitted by her to be important or not. [ 96 ] Madam Justice Humphries in Gustafson v. Davis , 2012 BCSC 1576 referred to in Ram , above says this on the order of witnesses at trial in paras. 114 to 116: [114] Counsel has the responsibility to present his case as he sees fit and the court understands if obstacles are created by scheduling difficulties for expert and out of town witnesses, or other unavailability.

However, from the point of view of a trier of fact, it is not only frustrating and even confusing to listen to evidence without a context, it can have an impact on the value of all of the evidence. [115] The practice of calling the plaintiff first is longstanding and is a common theme in advocacy texts for reasons that resonate with, and are often written by, trial judges.

I refer, for example, to s. 25.8 of Fraser, Horn & Griffin, The Conduct of Civil Litigation in British Columbia , 2nd ed. (Markham, Ont.: Lexis Nexis Canada Inc., 2007): Unsurprisingly, if a plaintiff is called as the first witness for his case, he tends to have more credibility than if he is called as the last witness, because of his opportunity, in the latter situation, to tailor his evidence to the evidence of the witnesses who have gone before him. and to s. 8.20 of the British Columbia Civil Trial Handbook , 2nd ed. (Vancouver: The Continuing Legal Education Society of British Columbia, 2005): In many cases the plaintiff will be called first, such as in a non-catastrophic injury case or a family case.

One reason for this choice is that the decision-maker usually wants to see the plaintiff to get a sense of the case, and may pay less attention to other witnesses if impatiently awaiting the plaintiff. and to Donald S.

Ferguson, ed., Ontario Courtroom Procedure (Markham, Ont.: Lexis Nexis Canada Inc., 2007) at p. 815: It is common for counsel to call their party as their first witness to avoid any submission that the party may have tailored his or her testimony to that of other witnesses. [116] If persuasion is the objective, and if it rests largely on the credibility of the plaintiff, counsel might give consideration to the practical and sensible course suggested by experience and this common sense advice. [ 97 ] Having considered all of the above legal principles that have bearing on the claimant's credibility and accepting fully Mr.

Fraser's reasons as to why he called the various witnesses in the order in which he did, I find as a fact that the claimant is a truthful reliable witness on all matters that she testified to relating to the liability issue I am asked to determine. [ 98 ] I find her witnesses likewise to be truthful and reliable. Ms. Torski added little to this case. Ms. Risewig and Mr. Moubert each gave their evidence in a careful way and were not shown to have exaggerated what they said in my view. Neither really had any connection to the claimant which might have coloured their evidence in any way.

They were really fully independent witnesses. [ 99 ] I turn now to the defendants' witnesses.

[100] I said above that I did not find Mr. Chiaritzia to be a very helpful witness. Nothing he said really helped me in my decision inthis case. [101] That leaves the defendant driver, Mr. Cordick. Mr. Somers in argument invited me to find he was a wholly credible witness. OnApril 15th, he was doing his job driving a bus, what he did for a living. He was trained to monitor his speed and he did so. I shouldaccept his evidence and not the claimant witness' estimates.

I should accept as true his statement that he would rather be late and safeand I assume on time with a passenger being potentially injured in the process. He was a more credible witness than the claimant. [102] Not surprisingly, Mr. Fraser took a different view and invited me to reject Mr. Cordick's evidence and find that he was not acredible witness. Mr. Fraser made the following points: 1. Mr. Cordick had a motive or reason to speed. In essence, he was late for the 6:44 a.m. train having missed his turn andwith a busload of people, some of whom at least were angry and anxious about missing the train. 2.

There is no reference in his June 26th, 2010 Incident Report to his not speeding and to checking his speedometer. 3. He specifically recalled every passenger thanking him, even the claimant, Ms. Utting, who had not done so. In my view,it seems highly unlikely each would do this, nor was this proposition put to the three passenger witnesses in their cross-examination bydefence counsel. 4. Mr. Cordick was not really driving very carefully on April 15th. He failed to make the Callaghan turn having missed it atmost a week earlier. Mr. Fraser seemed to assert Mr.

Cordick had reason to paint a prettier picture at trial of his overall driving on April15th than was really true. I confess that I am alive in this case to what Mr. Cordick said that making his stops in time was part of hisjob. I note that even in his June 26th Incident Report he appeared to explain why he was late six to seven minutes. This he felt was a"relevant detail" of the incident which he was directed to provide in this clearly standard form report document. 5. He exaggerated his evidence. [103] There are several other points not all directly made by Mr. Fraser in his closing submission that bear on Mr.

Cordick'stestimonial credibility. [104] He gave no evidence that he made any notes of the events on April 15th when he was asked to complete the June 26th, 2010Incident Report. Contrary to his initial evidence, he agreed he was given a letter by his superiors setting out some of the allegations thenknown by the defendants to have been advanced by the claimant. At that point, he had worked for approximately 50 days. I have noevidence as to the routes he drove during this period of time, but I find that they were not all Route No. 45. [105] I find on June 26th, 2010 and at trial, unlike Ms.

Utting, he was going largely from memory when he either completed hisIncident Report or testified. I often had the impression at trial that he was really telling me what he would have done if following hisusual procedure, not what he recalled he did do in fact. I have grave reservations, for example, that he checked his speedometer twice onthe 225th Street hill at all as he said he did and that he could recall at trial generally where he made the speedometer checks whileunderway with a busload full of people. I find he made this evidence up.

It does not accord with my common sense nor does it meet theabove test or basis of assessment that I have outlined in the case of Faryna v. Chorny, supra. [106] I note his Incident Report at p. 2 states that he was going 30 kilometres per hour prior to the incident. He would have knownwhat the incident was on June 26th, 2010. Ms. Utting had supplied those facts to his employer on April 15th in her email. I take thespeed reference therefore to be when he was on 225th Street going south down the hill and when she alleged that due to his driving shewas elevated into the air.

His trial evidence was that on checking his speedometer twice he was doing 40 to 50 kilometres per hour, amost material inconsistency when compared with the evidence he set out on June 26th, 2010 for his employer's consumption, namely, 30kilometres per hour in the Incident Report. [107] I am also aware in this case that it is likely in any bus driver's professional interest not to be found to have carelessly conductedhimself doing the job he was being paid to do. [108] I find I am in agreement with the points made by Mr. Fraser set out above. I found Mr.

Cordick at times exaggerated hisevidence, for example, the multitude of thank yous his passengers bestowed upon him at the conclusion of the re-route. He recalls moreof the trip than my common sense tells me he should have and it is all favourable to him. I do not find that Mr. Cordick is a crediblereliable witness. I find I prefer the evidence of all other witnesses in this case to his and certainly where his evidence differs from theirs. Counsel for the claimant relied on the following cases: 1. Snell v. Farrell, (SCC), [1990] S.C.J. No. 73 2. Falconer v. B.C. Transit Corp., 2013 BCSC 715

Section 145 of the Motor Vehicle Act, R.S.B.C. 1996 4. Nice v. John Doe, [2000] A.J. No. 912 5. Erickson v. Sibble, 2012 B.C.J. No. 2640 6. Whey v. Halifax (Regional Municipality), 2005 NSSC 348 , [2005] N.S.J. No. 536 7. Gillis v. B.C. Transit, [2001] B.C.J. No. 805

8. Gillis v. B.C. Transit, [1999] B.C.J. No. 133 9. Day v. Toronto Transport Commission, (SCC), [1940] S.C.R. 433 [109] The defendant relied on three additional cases, namely: 1. Habib v. Jack, 2011 BCSC 399 2. Lalani v. Wilson, [1988] B.C.J. No. 2408 3. Walker v. B.C. Transit, [1993] B.C.J. No. 2423 Claimant's Argument [110] Mr. Fraser submitted I should accept the evidence of the claimant's witnesses and find that Mr. Cordick was speeding down thehill on 225th Street and hit something to cause Ms. Utting to fly into the air. Speeding alone is evidence of negligent conduct.

Thespeed limit really sets the bar for the standard of care that he ought to have followed. [111] In Gillis, supra, Curtis J. found that when a bus driver drove around a corner at an excessive rate of speed causing a passenger toslide from her seat and be injured, that this event was reasonably foreseeable and driving at such a speed was negligent which negligencecaused the claimant's injuries. He was reversed on appeal as our Court of Appeal found that he had misconstrued the plaintiff's evidenceto the effect that the driver was speeding when she had not said this.

A new trial was therefore ordered. [112] Here, Mr. Fraser submits I have evidence of excessive speed in excess of the posted limit corroborated by all witnesses, save Mr.Cordick. [113] In Whey, supra, Warner J. of the Nova Scotia Supreme Court sets out the various ingredients of a negligence case. I will returnto these later. In this decision the above Faryna, supra, case is quoted with approval at para. 90. [114] In Whey, supra, the plaintiff sat in a rear aisle seat in a bus near the rear wheels and when the bus made a right turn and wentover a curb, was thrown off and injured.

It was held the driver was upset at a passenger and took the turn at too high a speed for theexisting circumstances (see para. 106). [115] As to the onus of proof, Mr. Fraser referred me to Whey, supra, at paras. 20 to 24 as follows and I quote: [20] The burden of proof in the case at bar is somewhat affected by the case law dealing with public carriers. Public Carriers [21] While the law applicable to the case at bar is the general law of negligence, several cases relating directly to public carriers havebeen cited by the parties.

It is helpful to see how the courts have applied the principles of evidence (burden of proof) and negligence inthese cases. The seminal decision is Day v. Toronto Transportation Commission (SCC), [1940] S.C.R. 433.

Thestandard of care is described at paragraph 19 and the first sentence of paragraph 20: 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 thedefendant 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, the rule was stated byLord Ellenborough, at p. 38, as follows: Every person who contracts for the conveyance of others, is bound to use the utmost care and skill, and if, through any erroneousjudgment on his part, any mischief is occasioned, he must answer for the consequences.

The question, then, for the jury was whether the motorman had used in a high degree all due, proper and reasonable care and skill underthe circumstances. [22] The standard has been repeated in … [various cases]. [23]The Alberta Court of Appeal in Nice not only recognized the Day decision as establishing a very high standard of care upon thecarrier, but that the superior knowledge of the carrier with regards to any unusual movement by the bus imposed upon the carrier aburden of establishing that it was not negligent.

This approach differed from that of the trial judge who found that the burden did not shiftto the defendant, but that once she (trial judge) found that the bus stopped suddenly without a known reason, an inference of negligencecould be drawn and that the "robust, pragmatic, ordinary common sense approach" to negligence and causation described in Snellsatisfied the burden on the plaintiff.

The Alberta Court of Appeal held, at the end, that neither approach produced a different result(paragraph 51). [24] I agree with the view expressed by Welsh, J.A., in Whelan at paragraphs 21 and 22 that it is not helpful to speak of shifting theonus of proof; rather the ordinary principles of proof are sufficient; that is, in establishing the elements comprising negligence,circumstantial evidence adduced by the plaintiff may lead the Court to draw an inference adverse to the common carrier unless thecarrier responds to negate that inference.

It follows that this Court does not agree with the statement in the defendant's memorandum that,"Day establishes a form of reverse onus. However, not every incident is considered to be an 'accident' to reverse the burden of proof." [116] The Day, supra, case is likewise followed by Ballance J. in Erickson, supra.

The facts in Erickson briefly stated are that theclaimant alleged she was injured while a passenger in a bus in Vancouver when the driver shortly after leaving a stop jammed on hisbrakes causing her to slide quickly along the bench seat she was sitting on and to strike an upright metal stanchion with her left hipsustaining injury. At paras. 46 to 48 and 57 Ballance J. says this:

[46] Common carriers are expected to transport their passengers safely. It is a reasonable expectation. It is well-settled that thestandard of care owed by Mr. Sibble to Ms. Erickson is the conduct that would be expected of a reasonably prudent bus operator in thecircumstances. The test takes into account the experience of the average bus driver as well as anything that the defendant driver knew orshould have known.

The standard is said to be heightened in circumstances where the driver knew or ought to have known that thepassenger was elderly, disabled or otherwise infirm [citations omitted]. [47] The traditional statement of the high standard of care and the burden of proof is found in the seminal decision of Day v.

TorontoTransportation Commission, (SCC), [1940] S.C.R. 433. … [48] This extract from Day [which I have left out in these reasons] has generally been accepted to mean that, when a passenger on apublic carrier has been injured in an accident, a prima facie case of negligence is raised and the burden then shifts to the carrier to provethat the passenger's injuries came about without negligence on its part: [citations omitted]. . . . [57] Although each case turns on its own peculiar facts, the authorities inform the general principles at play.

Taken together, thedecisions indicate that it is not, of itself, a breach of the standard of care for a bus driver to stop abruptly, even where there is anindication that special precautions may be warranted with respect to an elderly, frail or physically compromised passenger. The issue ofliability will depend not only on the manner of the stop, but the reason for its suddenness and the assessment of whether, in all thecircumstances, the impugned driving conduct was substandard when measured against the standard expected of a reasonably prudentdriver. [117] Mr.

Somers for the defendants puts particular emphasis on the reasoning that I have just referred to in para. 57. [118] Mr. Fraser argues that the claimant has in the case at bar made out the required prima facie case as per the above statement oflegal principles in Erickson, supra, and the defendants have failed to establish that Ms. Utting's injuries resulted without negligence onits part. The defendant driver sped on 225th Street and hit or went over something while doing so which caused the claimant to becomeairborne with subsequent resulting injuries.

It was foreseeable that the bounce could cause a passenger to become injured. It was up tothe defendants to show in evidence if there were bumps or no bumps on 225th Street and there was no evidence on point either way. [119] While Mr. Fraser seemed to focus on the driver exceeding the posted speed limit on 225th Street, in his closing submission healso suggested that the missed left turn at Callaghan and the driving that led to it was some evidence of undue care on the part of Mr.Cordick.

He might have been late in putting on his turn signal and had not learned anything from his experience with the same problemone week earlier. He was flustered with people yelling at him. I tend to agree with this last submission. Position of the Defendant [120] Mr. Somers argued that Mr. Cordick's driving was not negligent. No one had looked at the road. This is true as to April 15thonly, not later. No one on review of the Google map photos could identify a bump or dip.

I have dealt with this point above. [121] No one reported a loud audible noise coming from the bus when the claimant says she was elevated and Mr. Chiaritzia said therewould be such a noise if you hit a bump or a dip. [122] I note the claimant said as she came down, she heard a loud crack behind her left ear, but I understood this to refer to her body,not the bus. But she also said she heard a “thud” when the bus came back down. Mr. Moubert said he heard no noise coming from thebus when he was elevated. I understood Mr.

Chiaritzia to say that if the leaf springs were overworked and then bottomed out with theaxle stops then hitting the frame rails, only then would there be a noise. He did not state this would occur with every bounce sufficient topropel passengers into the air from their seats or that there would be an audible noise with every dip or bump a commuter bus hit. [123] Mr. Somers argued that Whey, supra, especially at para. 24 dealing with the Court's views on the shifting onus had not beenfollowed in British Columbia.

I note Warner J.'s views therein were in essence that these actions should be dealt with on ordinarynegligence principles. I also note Whey was cited and discussed and in Erickson, supra, at para. 55 and without any adverse comment. [124] Mr. Somers relied heavily on Habib, supra, a judgment of Madam Justice Ross of our British Columbia Supreme Court. Theclaimant alleged in that case that the driver did not reduce his speed when going over a speed bump while she was seated in the very rearmost bench seat in the bus. The speed bump was approximately one block from where the claimant boarded the bus.

When the driverhit the speed bump, she was just getting settled in her seat. She estimated his speed to be 50 kilometres per hour and said he did not slowfor the speed bump. In the result, there was a violent bump, she went airborne during which time her neck snapped forward and back,and she sustained a neck injury.

She did not file an Accident Report with ICBC until one year after the accident despite on the day ofsame being asked to file one and made no reference therein when she did unlike the claimant's report in the case at bar to excessivespeed. [125] After referring to the Day, supra, case, Madam Justice Ross cited Lawson v. B.C. Transit, 2002 BCSC 1438 at para. 27 of herreasons as follows: [27] In this province, Madam Justice Humphries summarized the principles to be applied in Lawson v. B.C. Transit, 2002 BCSC1438, 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 heused all proper and reasonable care and skill to avoid or prevent injury to the passenger. The standard of care imposed is the conductexpected of a reasonably prudent bus driver in the circumstances. The court must consider the experience of an average bus driver, aswell as anything that the particular driver knew or should have known about the passenger. The standard of care required is higher whenthe driver knew or ought to have known that the passenger was handicapped or elderly.

[ 126 ] This judge held at para. 30 that the driver would not have known that due to a previous injury the claimant was sensitive to movement and required the use of a protective cushion. [ 127 ] At para. 28 she said this: [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. He characterized the issue in the case before him as whether ...

The braking of the bus was something that did not fall outside the normal range of movements that passengers ought to expect on the buses. ... [ 128 ] The Court did not accept her evidence that the driver drove over the speed bump at 50 kilometres an hour while the posted speed there was 15 kilometres per hour, contrary to the case at bar. [ 129 ] The Court in Habib , supra , accepted the driver's evidence that he would have followed his usual or common practice on the date the claimant sustained an injury as he did not recall anything unusual occurring on his shift this day and this included his practice to follow the speed limit.

Clearly, this case can be distinguished on its facts from the case at bar. The claimant's evidence as to the speed was not corroborated, nor was there a material discrepancy in the driver's own evidence as to speed and he was found to be a credible witness unlike the case at bar. [ 130 ] Mr. Somers has relied on two other cases, namely, Lalani , supra , and Walker , supra . Both can in my view be distinguished from the case at bar. [ 131 ] In Lalani , supra , the driver braked and the claimant fell. There was no direct evidence as to why he had done so.

The Court held the claimant had not established a breach of the duty of care the driver owed the claimant passenger. The Court also had credibility problems with the claimant as a witness. [ 132 ] In Walker , supra , the Court found there was no evidence of negligence. [ 133 ] Dealing with the facts (or lack of same) Mr. Somers made the following points: (

a) There was no bump or dip in the road that the claimant could identify; (

b) It was not shown that Mr. Cordick knew on April 15th, 2010 that there was a bump or dip on 225th Street. If he had no knowledge of same, Mr. Somers argued it would not then be reasonably prudent for him to have driven at 10 kilometres per hour downhill. If he knew of a bump or dip, only then would he be required to take reasonable care to avoid it. In answer to a question from the Court to the effect that should a prudent driver on the road he may have travelled potentially only once before in a bus not drive more slowly, not knowing if it had bumps or dips in case there was one, Mr.

Somers suggested that the fact that the claimant was elevated only six inches out of her seat meant that she was only minimally affected by the bump and this is did not mean the driver's conduct fell below the requisite standard of care. (

c) Lurches in buses do occur (see Habib , supra, para. 28 ) and as the claimant's independent witnesses explained as in Whey , supra at para. 88 , where going over a curb per se was not held to be negligence, so too was going over a bump not in itself evidence of negligence. The bump that resulted in the claimant become airborne was just part of general bumpiness on any ride, nothing more. (

d) Speed alone without more was not a breach of the standard of care, something more would be required. Discussion [ 134 ] I find the following facts to be established on the balance of probabilities in this case: 1. The claimant, Ms. Utting, was on April 15th, 2010, 4 feet, 11 inches in height and weighed 130 pounds and was then 51 years of age. 2. When she sat on the fold down seat at the rear of the bus on April 15th, her feet did not touch the floor. This was the only seat available to her.

The back of the seat when occupied touches the rear of the bus frame and the seat is located some two and a half feet behind the centre line of the rear axle. The claimant was a regular passenger of this bus on Route No. 45 and had only seen the driver once before. Her seat had no headrest or seat belt available for her use. 3. The defendant driver would have seen her get on the bus at approximately 6:31 a.m. on April 15th and would have seen she was a short person.

He knew or is taken to know her feet would not touch the ground if she sat in a rear seat, especially a fold down seat, and in such event, she would not be able to brace herself by putting her feet on the floor in the event that the bus hit a bump. 4. Cordick's commuter bus was full of passengers when it first drove onto River Road and at all material times thereafter and prior to starting his re-route. 5. When Cordick turned right from 225th Street onto River Road, he drove in the slow lane and did not signal a left turn until he was some 125 yards from Callaghan.

6. The traffic on River Road westbound and on the Haney By-pass was very heavy on April 15th and he missed the left turn, just as he had done the prior week. He had never before these events missed any turns in the five years he had driven a bus. 7. When the defendant driver was missing or missed the Callaghan left turn, a number of his passengers called out variously "You need to be in the left lane" and he was not and "We're going to miss the train". 8.

The train being referred to is the Westcoast Express which was scheduled to leave the train station to which the bus was going at 6:44 a.m. and if missed, required passengers to wait some 30 minutes for the next westbound Vancouver train. 9. On 225th Street as one proceeds southbound from North Road there is a long incline or hill and 225th Street is a bumpy road with no stop signs. 10. The claimant held onto the rail on the seat back in front of her with her right hand at all material times with her purse in her left hand. There was nothing else for her to hold onto. 11.

The bus hit a bump or dip on 225th Street and bottomed out, as described above by Mr. Chiaritzia and the jolting motion of the bus elevated the claimant into the air off her seat by approximately six inches and she sustained injuries in the process including when landing on her seat. There was an audible “thud” or noise when the bus came down after hitting the bump or dip. 12. The above movement of the bus caused the majority of the passengers in the bus to be lifted from their seats, including the passenger beside the claimant and the two in front of her. 13.

The speed of the bus driver when he hit the bump or dip was between 58 and 65 kilometres per hour. The posted speed limit in this area of 225th Street is 50 kilometres per hour. 14. The defendant driver was aware while driving his re-route and on 225th Street that certain of his passengers were angry with him as he had just missed the left turn on Callaghan to the train station. 15. The bus arrived at the train station at about 6:41 a.m. following the re-route whereas its usual arrival time was approximately 6:38 to 6:39 a.m. and thus it was late as compared to its usual arrival time. 16.

The Vancouver train arrived approximately 30 seconds after the claimant had walked from the bus to the terminal. 17. The claimant said nothing to the driver on leaving the bus. She was then feeling somewhat lightheaded. Her neck was starting to get sore and ache and she looked quite shocked. I also find that by reason of her condition she was really in no shape to report to the driver about anything on disembarking and did not want to miss her train. Hence nothing turns in this case on her failure to report to Mr. Cordick at the time of disembarkation from his bus. 18.

The detour took the driver some three to five minutes to complete. 19. One of the driver's duties was to make his stops in a timely way. In essence, he had a

schedule to keep. 20. The driver had driven this same route one week prior to the event in issue. There is no evidence as to his speed that day on 225th Street, whether his bus was full or not, how long the detour took, or importantly whether he had ever driven this route before in a bus. I assume without his offering such evidence he had not done so and hence 225th Street could not be said to be a street that he was very familiar with on April 15th, 2010. Conclusion [ 135 ] I find the claimant has further established on a balance of probabilities that she suffered an injury.

This injury was caused by the defendant Cordick's conduct in exceeding the speed limit while on a detour on 225th Street knowing it was a bumpy road and in hitting a bump or dip when he knew or ought to have known that the same might be present. [ 136 ] The standard of care that he ought to have adhered to and did not was to drive his full bus of passengers at not more than the speed limit and likely less so, so that in the event he hit an unforeseen or even visible bump or dip, the suspension would not react including bottoming out thereby throwing passengers off their seats into the air and thereby potentially injuring themselves. [ 137 ] Mr.

Cordick on April 15th, 2010 is to be taken to know how his bus, when full, would react to hitting a bump or dip in the road when underway, just as it did. He is also taken to know that at the material time he was not driving a group of teenage Olympic gymnasts but rather a group of likely adults, some with less physical dexterity than others and some with legs that did not touch the ground when seated in the bus, as was the case with the claimant. He ought to have ensured that the manner in which he drove on 225th Street did not create an unreasonable risk of harm to his passengers, all of them.

By speeding as he did on the reasonably steep incline of 225th Street, he did create an unreasonable risk of harm to his passengers. As a bus driver in the employ of Coast Mountain Bus Company he owed a legal duty of care to all his passengers as set out in the cases including Day , supra . The defendant Cordick's manner of driving was the direct cause of the claimant being launched into the air and suffering injuries as a result. [ 138 ] I also find that unlike in some cases the movement of this bus on April 15th, 2010 was both violent and unusual.

It was not, for example, an ordinary jerk and an unexpected incident of travel. It was an extraordinary one resulting in Ms. Utting moving in an abnormal way off her seat. It was a sudden event with a probable cause, the driver, while speeding hitting a bump or dip that he was unaware of on a bumpy road. [ 139 ] The cause of her injury was one wholly within the driver's ability to control as it related to his speed on an unknown road surface. The driver could easily foresee the prospect of the accident that ensued occurring if he did now slow down and could reasonably

have taken steps to avoid it most importantly by reducing his speed particularly having regard to the fact that none of his passengers were wearing seatbelts. [ 140 ] I have considered whether or not the claimant was somehow herself contributorily negligent and responsible for her own injuries in whole or in part. At law, she too has a duty to act as a reasonable person for her own safety. I find that she did so. She sat in the only available seat. There was no seat belt supplied. She held on to the handrail ahead of her. Even this would not, in my view, avoid her elevation on a bump as occurred here.

It was foreseeable she would hold her purse somehow and not therefore have a second free hand to grip the rail in front of her. It was not her fault her feet did not touch the floor.

Had the Coast Mountain Bus Company wanted to provide lower seats for shorter people so that their feet might touch the ground, it could have done so like some parking lots have spaces for small cars only. [ 141 ] In the result, I find the claimant has proven that the defendants' driver Pepy Cordick and his employer whom I understand is Coast Mountain Bus were negligent and are 100 percent liable for the claimant's injuries. [ 142 ] The claimant is entitled to all costs incurred to date relating to its proof of this issue.

If the parties cannot agree on same, I direct that the Registrar of the Court will determine these costs pursuant to the provisions of Rule 20(3) and (4) of the Rules of this Court.