Court File and Parties

Court File No.: CV-12-129-00 Date: 2016-06-03 Superior Court of Justice – Ontario

Re: Valrose Taylor v. Corporation of the City of Brampton

Before: Sproat, J.

Counsel: Michael Henry, for the Plaintiff Charles Painter, for the Defendant

Heard: May 24-26, 2016

E N D O R S E M E N T

Introduction

[1] Ms. Taylor brings this action as a result of injuries she suffered when she fell while on board a City bus. The parties agreed on damages and, as such, I will simply address the question of liability.

The Evidence

[2] On December 7, 2011, at approximately 5:14 p.m. Ms. Taylor was boarding a City of Brampton bus. She paid her fare. The bus started to move forward. Just as she was getting to her preferred seat at the back of the bus the driver braked suddenly causing Ms. Taylor to lose her grip on a stanchion and fall.

[3] The driver testified that he applied the brakes suddenly when two pedestrians ran in front of the bus. He first noticed the pedestrians as they started to come in front of the bus and were illuminated by its headlight. The principal argument advanced by Mr. Henry was that the driver should have noticed the pedestrians earlier so that he could have either not started forward or at least would have been moving more slowly and able to brake more gently.

[4] The bus had four video cameras. As such it is possible to see a driver view forward which shows the two pedestrians coming into view. There is a front door view from which one can determine when the bus starts and stops. There are also two interior views which clearly depict Ms. Taylor falling. The video cameras were calibrated to record time to 1/100 of a second.

[5] The bus was headed south on Chinguacousy Road approaching the Sandalwood Parkway intersection. There are four south bound lanes. Starting from the curb I will describe them as:

(a) right turn lane (bus stop) (b) through lane #1 (c) through lane #2 (d) left turn lane.

[6] Northbound on Chinguacousy Road there are two through lanes running north from the Sandalwood Parkway intersection.

[7] Events unfolded quickly as is evident from the following. (Given the calibration to hundredths of a second there is an element of judgment in deciding exactly when the actions below occurred. However, any margin of judgment or error could not affect my conclusions.)

17:14:11:93 bus stops at bus stop 17:14:25:14 bus starts to move 17:14:27:35 southbound car in through lane #2 passes median allowing pedestrians to cross 17:14:28:61 pedestrians visible in through lane #1 17:14:29:67 driver starts to brake as pedestrians step in front of the bus and are illuminated by headlights.

[8] The bus driver testified that after he picked up four passengers, including Ms. Taylor, he checked his mirror and started to move forward in order to merge to the left from the right turn lane into through lane #1. He said he did not see anyone running towards the bus or on the median or on the far side of the median in the northbound lanes. He was not asked specifically if he looked at the median. He was, however, an intelligent forthcoming witness. He readily agreed with many suggestions made in cross-examination. I am satisfied that if he never looked at the median he would have said so. The bus driver determined that it was safe to merge and he started to move the bus forward and to the left.

[9] He was travelling at less than ten kilometres per hour when two pedestrians ran in front of the bus from his left. He applied the brakes, as he described it, not too hard but also not gentle. He testified he first saw the pedestrians when they were right in front of him on the left side of the bus. The driver was asked why he didn’t see them earlier. He said that he was not expecting anyone to be running across the road against traffic and they had dark clothing on.

[10] In cross-examination the driver acknowledged that there was overhead lighting along the roadway. His training was that passenger safety was an important priority. He also said that part of the training was being warned about pedestrians doing crazy things such as crossing against a light. He knew that people sometimes run in front of the bus to try to catch the bus and the drivers need to be alert to this and careful. If he sees a person running to catch a bus he usually waits for the person. He agreed that the video displayed in court was not as clear as what he could observe that evening. He agreed that after the southbound vehicle proceeded through the intersection he could, on the video, see the shadows of the pedestrians in the area of the median.

[11] Once he decided to move forward his primary focus was necessarily on merging and not on people who might be in the area. He looked in his rear view mirror but would also “check around”. The pedestrians who ran out looked like they were running parallel to the cross walk, in other words at a 90 degree angle crossing the road just in front of the bus. If he had detected them earlier he might not have moved or he might have been able to brake more gradually.

The Law

[12] In Meady v. Greyhound Canada Transportation Group., 2012 ONSC 657; 2015 ONCA 6, Platana J. addressed the standard of care for a bus driver as follows:

Standard of Care

[170] The conventional standard of care that is applied in an action for negligence is that of the ordinary, reasonable, cautious and prudent person in the position and circumstances of the defendant: Ryan v. Victoria (City), [1991] 1 S.C.R. 201, at 222. The reasonable person is neither exceptional nor extraordinary. He or she is a person of normal intelligence who makes prudence a guide to conduct, doing nothing that a prudent person would not do and not avoiding doing anything that a prudent person would do: see Canada (Attorney General) v. Dingle Estate, 2000 NSCA 5, [2000] N.S.J. No 4, at para. 31; Burbank v. B (R.T.), 2007 BCCA 215, [2007] B.C.L. No. 752, at para. 60; Fridman et. al., at 366. What is reasonable will depend on the facts of each case, and includes a consideration of the likelihood (or foreseeability) of the harm, the gravity of the harm, and the costs that would have to be incurred in order to prevent the harm: Ryan, at 526. These factors are to be assessed as of the time of the alleged breach and not in light of subsequent developments: see Desautels v. Katimavik (2003), 175 O.A.C. 201 (C.A.); Nattrass v. Weber, 2010 ABCA 64, [2010] A.J. No. 424, leave to appeal dismissed, 2010 S.C.C.A. No. 159.

(a) Standard of Care for Bus Drivers

[171] I accept the Greyhound Defendants’ submission that for a bus driver, the standard of care is that of the reasonable bus driver in like circumstances. To determine whether the standard of care for a bus driver is met, I must ask whether the bus driver used all due, proper and reasonable care and skill in the circumstances: see Day, at 441; Rances, at para. 349.

[13] The Court of Appeal agreed that Platana J. correctly stated the applicable standard of care.

[14] The plaintiff cited, and I take no issue with the principles stated in, Wong v. South Coast British Columbia Transportation Authority 2013 BCSC 1118 in which Power J. stated:

[33] In Prempeh v. Boisvert, 2012 BCSC 304, Dardi J. provided a helpful summary of the standard of care owed by a public carrier. In that case, the plaintiff had just got up from her seated position in order to prepare to disembark the bus. The bus driver in that case made a “hard stop” and the plaintiff fell.

[34] At paras. 15 - 20 the court stated:

[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.

[16] It is well-settled on the authorities that the standard of care imposed on a public carrier is a high one. However the principle to be derived from the authorities is that the standard to be applied to the bus driver is not one of perfection nor is a defendant bus driver effectively to be an insurer for every fall or mishap that occurs on a bus: Patoma at para. 7.

[17] Day v. Toronto Transportation Commission, [1940] S.C.R. 433, is the seminal case dealing with the liability of public carriers. The plaintiff, a passenger in a street car owned by the defendant, while standing and picking up a parcel in preparation to disembark, was thrown to the floor and injured by the sudden application of the emergency brake. The articulation of the standard of care was stated as follows by Hudson J. at 441:

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 Hals., p. 60, paras. 92 and 95. In an old case of Jackson v. Tollett (1817) 2 Starkie 37, the rule was stated by Lord Ellenborough, at p. 38, as follows:

Every person who contracts for conveyance of others, is bound to use the utmost care and skill, and if, through any erroneous judgment on his part, any mischief is occasioned, he must answer for the consequences.

[18] The principles articulated in Day have been interpreted by the courts in this province as endorsing the following analytical approach -- once a passenger on a public carrier has been injured in an accident a prima facie case of negligence is raised and it is for the public carrier to establish that the passenger's injuries were occasioned without negligence on the part of the defendant or that it resulted from a cause for which the carrier was not responsible: Planidin v. Dykes, [1984] B.C.J. No. 907 (S.C.); Visanji v. Eaton and Coast Mountain Bus Co. Ltd., 2006 BCSC 656 at para. 26.

Analysis and Findings

[15] Both Ms. Taylor and the driver were honest witnesses. The driver was a reliable witness. Any inconsistencies in Ms. Taylor’s evidence were the result of her memory fading over time.

[16] The driver’s evidence was that the pedestrians were crossing the road at a 90 degree angle. The video supports this and shows them just north of the pedestrian cross-walk. I also infer and find that they proceeded from the area of the median after the southbound car passed in through lane #2 because they would need a place of safety, away from this vehicle, before starting to cross. I find, therefore, that they ran from the area of the median in a straight line in front of the bus.

[17] The bus would have been visible as it travelled southbound and as it sat for 14 seconds taking on passengers. I am satisfied that the two pedestrians (one of whom had white shoes) who crossed in front of the bus are the same two pedestrians (one of whom has white shoes) who are visible arriving at the bus stop moments later. If they needed to run so quickly and dangerously from the median it only makes sense they were running previously. I, therefore, infer and find that the two pedestrians were also running prior to getting to the area of the median where they started across the south bound lanes.

[18] It would, however, be speculation as to where the pedestrians were prior to arriving in the area at the south end of the median closest to the intersection. The driver’s evidence and the video shed no light on that. For example, one possibility is that they were behind the bus initially and running south along the median in which case they would have been partially out of the driver’s field of vision. I do not, therefore, think the driver can be faulted for not seeing them prior to their arrival at the south end of the median.

[19] The question then becomes whether the driver was negligent in not seeing the pedestrians at the south end of the median, as they started to cross at a 90 degree angle towards the bus.

[20] The video demonstrates that by the time the pedestrians could have started to cross from the area of the median, being after the southbound vehicle in through lane #2 had cleared, the bus had already been moving for approximately two seconds. The driver was engaged in signalling and merging into through lane #1. The bus was in motion and he would have to pay primary attention to what was in front of him. I don’t think that the driver can reasonably be expected to merge into through lane #1 and at the same time notice that two pedestrians, wearing dark clothing, were beginning to move from the median area three lanes away toward the bus.

[21] Once the driver observed the pedestrians directly in front of the vehicle he had to brake immediately to avoid causing serious injury or death.

[22] I am, therefore, satisfied that the driver met the standard of care of a reasonable bus driver in like circumstances in that he used all due, proper and reasonable care in the circumstances.

Conclusion

[23] The action is, therefore, dismissed. While this is the necessary result it is unfortunate for Ms. Taylor. She suffered injuries due to the negligent and reckless conduct of the pedestrians who unfortunately could not be identified.

[24] In these unfortunate circumstances, if the City is still seeking costs, Mr. Painter shall provide me with costs submissions within 10 days, Mr. Henry shall reply within a further 10 days and Mr. Painter shall file any reply submissions within a further 5 days.

Sproat, J.

DATE: June 3, 2016

COURT FILE NO.: CV-12-129-00 DATE: 20160603 SUPERIOR COURT OF JUSTICE – ONTARIO RE: Valrose Taylor v. Corporation of the City of Brampton BEFORE: Sproat, J. COUNSEL: Michael Henry, for the Plaintiff Charles Painter, for the Defendant ENDORSEMENT Sproat, J. DATE: June 3, 2016