



COURT OF APPEAL FOR BRITISH
COLUMBIA




Citation:



Benavides v. Insurance Corporation of British Columbia,









2017 BCCA 15




Date: 20170110

Docket: CA43193

Between:

Manuel Benavides

Respondent

(Plaintiff)

And

Insurance
Corporation of British Columbia,
South Coast British Columbia Transportation Authority, doing
business as Translink, and Coast Mountain Bus Company Ltd.

Appellants

(Defendants)






Before:



The Honourable Mr. Justice Frankel

The Honourable Madam Justice MacKenzie

The Honourable Madam Justice Fenlon




On appeal from:  An
order of the Supreme Court of British Columbia, dated October 8, 2015 (
Benavides
v. Doe
, 2015 BCSC 1831, New Westminster Docket M150347).




Counsel for the Appellants:



G. Ritchey





Counsel for the Respondent:



R. Pici
V. Cheung





Place and Date of Hearing:



Vancouver, British
  Columbia

September 26, 2016





Place and Date of Judgment:



Vancouver, British
  Columbia

January 10, 2017









Written Reasons by:





The Honourable Madam Justice Fenlon





Concurred in by:





The Honourable Mr. Justice Frankel

The Honourable Madam Justice MacKenzie








Summary:

Appeal from a finding that a
bus drivers negligence caused the plaintiff to fall. Held: appeal dismissed. The
plaintiff bears the burden of proving on a balance of probabilities that the
defendant breached the high standard of care owed to passengers of public
carriers. Once the plaintiff has established a prima facie case of negligence,
the burden shifts to the defendant to show that he or she was not negligent.
Although the trial judge misarticulated the test, he correctly determined the
ultimate issue of liability based on his finding that the bus driver braked
hard in order to avoid overshooting the bus stop.

Reasons for Judgment of the Honourable
Madam Justice Fenlon:

introduction

[1]

The defendants in a personal injury action appeal a finding that a bus
drivers negligence caused the plaintiff to fall. The appellants contend the
trial judge incorrectly placed the onus on the defendants to prove that the
driver was not negligent.

background

[2]

The respondent, Mr. Benavides, was injured in January 2012 while
riding on a bus operated by the appellant South Coast British Columbia
Transportation Authority, doing business as Translink, and Coast Mountain Bus
Company Ltd. (Translink). Because the bus driver was not identified, Mr. Benavides
named the Insurance Corporation of British Columbia as a nominal defendant
under s. 24 of the
Insurance (Vehicle) Act
, R.S.B.C. 1996, c. 231.

[3]

The incident occurred when Mr. Benavides was travelling home from a
supermarket on Fraser Street, in Vancouver. One stop before he intended to
disembark, Mr. Benavides rang the bell to let the driver know he wanted to
get off at the next stop. He then got up from his seat and moved to the rear
door, holding on to the vertical metal bar with one hand, while holding
shopping bags in the other. The bus braked suddenly and without warning when it
was at or just past Mr. Benavides intended stop. He fell and sustained
soft tissue injuries to his hands, knees, back, neck and right shoulder and contusions
to his chest and rib cage. The bus was crowded with passengers. Mr. Benavides,
who was 76 years old at the time of trial, left the bus without reporting the
incident to the driver. About one month later the event was reported to
Translink by someone on behalf of Mr. Benavides.

[4]

At trial a representative of Translink testified that bus drivers are
trained to slow down as they pull into regular stops rather than drive at a
normal speed and then brake suddenly. He testified further that drivers are
trained to do everything possible to avoid sudden stops, except when they are
necessary to avoid emergency hazards.

[5]

The trial judge found that Mr. Benavides fell as a result of the
driver braking abruptly at the bus stop and that the fall caused Mr. Benavides
injuries. He awarded damages of approximately $41,000.

Analysis

[6]

The appellants do not contest the award of damages or the finding that Mr. Benavides
was not contributorily negligent. The sole issue on appeal is whether the trial
judge erred by assuming that a
prima facie
case of negligence is made
out when a passenger is injured while riding on a public carrier, effectively
reversing the onus of proof and requiring the defendant to establish that the
injuries occurred without negligence.

[7]

The appellants submit that the trial judge misdirected himself on the burden
of proof. At the beginning of his assessment of liability he said at para. 40:

Once a plaintiff passenger
establishes that he or she was injured while riding on a public carrier, a
prima
facie
case of negligence is made out. The onus then shifts to the defendant
carrier to establish that the passengers injuries occurred without negligence
on the part of the carrier.

The judge repeated this formulation
in relation to the particular case before him at para. 43:

The plaintiff
has established that he was injured while a passenger on a bus operated by
Translink, a public carrier. Accordingly, he has made out a
prima facie
case of negligence, and the burden shifts to the defendants to show that Mr. Benavides
injuries occurred without negligence on the part of Translink, or that it
resulted from a cause for which the defendants are not responsible.

[8]

The approach adopted by the trial judge has been followed in a number of
cases in the Supreme Court of British Columbia. As Dardi J. observed in
Prempeh
v. Boisvert
, 2012 BCSC 304, those cases relied on
Day v. Toronto
Transportation Commission
, [1940] S.C.R. 433. She said:

[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
passengers 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
(Q.L.)(S.C.);
Visanji v. Eaton and Coast Mountain Bus Co. Ltd.
,

2006
BCSC 656 at para. 26. [Emphasis added.]

[9]

However, as Dardi, J. further noted in
Prempeh,
that approach
relies on the maxim
res ipsa loquitur
(i.e., the thing speaks for
itself), which was done away with by the Supreme Court of Canada in
Fontaine

v. British Columbia (Official Administrator)
, [1998] 1 S.C.R. 424. Dardi
J. addressed this change in the law at para. 19 of
Prempeh
:

However it must be noted that in
Fontaine
v. British Columbia (Official Administrator)
,

[1998] 1 S.C.R. 424,
46 B.C.L.R. (3d) 1, Major J. in discussing the doctrine of
res ipsa

loquitur
in the context of a single car accident, observed as follows:

27        It would appear that the law
would be better served if the maxim was treated as expired and no longer used
as a separate component in negligence actions. After all, it was nothing more
than an attempt to deal with circumstantial evidence. That evidence is more
sensibly dealt with by the trier of fact, who should weigh the circumstantial
evidence with the direct evidence, if any, to determine whether the plaintiff
has established on a balance of probabilities a
prima facie
case of
negligence against the defendant. Once the plaintiff has done so, the defendant
must present evidence negating that of the plaintiff or necessarily the
plaintiff will succeed.

[10]

It is worth noting that
Day
itself, on a close reading, does not support
an assumption of
prima facie
negligence when a passenger is injured
while riding on a public carrier. In that case the plaintiff was injured when
the driver of the streetcar he was riding on applied the emergency brake to
avoid a vehicle performing a U-turn in front of it. A collision ensued. The
sudden stop caused the passenger to fall.

[11]

The plaintiffs original claim was only against the Toronto
Transportation Commission (the TTC), which operated the streetcar. The TTC,
in turn, defended the claim on the basis that the accident was caused entirely
by the negligence of the driver of the vehicle. The plaintiff subsequently
applied successfully to add the driver of the vehicle as a defendant. There was
no issue of contributory negligence; the liability issue was a contest between
the TTC and the operator of the vehicle.

[12]

The matter proceeded to trial before a judge and jury. The questions
asked of the jury, and its answers on liability, were set out at page 437 of
the judgment as follows:

1. Were the plaintiffs
injuries due to any negligence on the part of the motorman of the
Transportation Commission?

A. Yes.

If your answer is yes in
what did such negligence consist?

A. The motorman was negligent
in not looking or observing the road ahead of him; if he (the motorman) had
been observing properly he would not have found it necessary to apply the
emergency brake at all, thus avoiding the injury to the plaintiff.

2. Has the defendant Clarkson
[the motor vehicle driver] satisfied you that the injuries of the plaintiff did
not arise through any fault or negligence on his part?

A. Yes.

It is apparent from these questions that the liability
of the TTC was determined based on the usual approach in negligence cases: the
plaintiff bore the burden of establishing an act or omission on the part of the
defendant that caused the injury.

[13]

In the Supreme Court of Canada, none of the five judges who provided
reasons suggested, either expressly or implicitly, that the jury was improperly
instructed or asked to follow an incorrect legal process. More significantly, none
of the other judges adopted the oft-cited passage from the judgment of Hudson
J. which is said to support a reverse onus approach when a public carrier is
named as a defendant.

[14]

In any event,
Fontaine
has clearly overtaken
Day
as the
authority on the burden of proof in cases of this kind. The plaintiff in
Fontaine
was the estate of a passenger who died when the vehicle he was travelling in left
the road on Highway 3 between Hope and Princeton. The defendant driver also
died in the accident. There were no witnesses and, therefore, no direct
evidence as to what caused the accident. The plaintiffs estate argued it could
be inferred that the vehicle left the highway as a result of negligence because
vehicles do not normally go off the road; as a result, it was up to the
defendant to prove that the accident happened without negligence on his part. Since
there was no evidence as to how the accident happened, the plaintiffs estate
argued it was bound to succeed.

[15]

The Supreme Court rejected the plaintiffs argument as a matter of
policy. At paras. 17-27 Major J. reviewed the types of case in which the
maxim
res ipsa loquitur
had been applied historically, the practical
difficulties that had arisen in determining the facts to which it applied and
the effect of its application. In addressing the latter point Major J.
confirmed at para. 23:

As in any negligence case, the plaintiff bears
the burden of proving on a balance of probabilities that negligence on the part
of the defendant caused the plaintiffs injuries. The invocation of
res ipsa
loquitur
does not shift the burden of proof to the defendant.
Rather, the effect of the application of
res ipsa loquitur
is
as described in
The Law of Evidence in Canada
(1992), by John Sopinka,
Sidney N. Lederman and Alan W. Bryant, at p. 81:

Res ipsa loquitur
, correctly understood, means that circumstantial evidence constitutes
reasonable evidence of negligence.
Accordingly, the
plaintiff is able to overcome a motion for a non-suit and the trial judge is
required to instruct the jury on the issue of negligence. The jury may, but
need not, find negligence: a permissible fact inference. If, at the conclusion
of the case, it would be equally reasonable to infer negligence or no
negligence, the plaintiff will lose since he or she bears the legal burden on
this issue. Under this construction, the maxim is superfluous. It can be
treated simply as a case of circumstantial evidence. [Emphasis added.]

[16]

It is apparent from this passage that even in cases in which the maxim
res
ipsa loquitur
had been applied historically, the burden of proof remained
with the plaintiff. This led the Court in
Fontaine
to conclude at para. 27
that the law would be better served if the maxim was treated as expired in
negligence actions.

[17]

I draw from this review of the law the following principles:

·

The mere fact that a passenger is injured while riding on a
public carrier does not establish a
prima facie
case of negligence.

·

The plaintiff bears the burden of proving on a balance of
probabilities that the defendant breached the standard of care owed to the
plaintiff.

·

Once the plaintiff establishes a
prima facie
case of
negligence, in practical terms the burden shifts to the defendant to answer the
case against him and to show that he was not negligent.

[18]

In the present case, the appellants argue that the question of liability
should be remitted to the trial judge so that the correct burden of proof can
be applied to the evidence. In my view, the case can be resolved without
further consideration by the trial court. Although the trial judge
misarticulated the test, he made the following finding of fact which is
sufficient to support his ultimate conclusion on liability:

[47]      I find
that the bus driver breached the standard of care expected of a reasonable and
prudent bus driver by braking abruptly without warning his passengers and by
braking suddenly in order to stop the bus at or beyond its regular stop at
Fraser and 22nd Avenue.

[19]

Circumstantial evidence can support an inference of negligence. In my
view, there was evidence to support the judges inference that the bus driver
braked hard in order to avoid overshooting the bus stop. That inference was
not, as in
Lalani v. Wilson
, [1988] B.C.J. No. 2408 (S.C.), a
matter of mere speculation.

[20]

In summary, applying the correct test, the findings made by the trial
judge support his ultimate conclusion on liability. In the circumstances, no
purpose would be served by remitting the case to the trial court for
reconsideration. I would accordingly dismiss the appeal.

The
Honourable Madam Justice Fenlon

I AGREE:

The Honourable
Mr. Justice Frankel

I AGREE:

The Honourable
Madam Justice MacKenzie


