On August 31st, 2009, the plaintiff Ms. Wong, 81 years old, and her 92 year old husband boarded a Vancouver city bus through the rear doors. Ms. Wong was an experienced rider of the Vancouver bus system and held an annual bus pass. She helped her husband to his seat, and then walked towards the front of the bus in order to have her husband’s ticket book stamped by the bus driver. She then spoke to the bus driver about getting off at a particular stop and started to walk back  to her husband. She had taken about two steps from the fare box when the bus driver pulled into traffic in an abrupt motion. As a result, Ms. Wong fell and broke her hip. She was not holding on to a rail at the time of the fall. Ms. Wong commenced a claim for damages.

In finding liability against the bus driver and the transit company, the British Columbia Supreme Court set out the standard of care for a public carrier as “conduct or behaviour that would be expected of a reasonably prudent bus driver in the circumstances.” The Court noted that this is an objective test which takes into consideration both the experience of the average bus driver and anything the bus driver knew or ought to have known, including whether a passenger might require additional care as a result of impairment due to age or disability.

Although Ms. Wong was a fit and healthy 81 year old, she was nonetheless a senior citizen with obvious mobility impairments. The bus driver should have been aware that she was not yet in her seat given that she just turned away from the fare box after seeking his assistance. The Court found that the driver breached the standard of care of a reasonably prudent bus driver by entering traffic without warning Ms. Wong of his intention and without checking to ensure that she was either sitting or securely standing.

The Court also found that Ms. Wong was contributorily negligent. She was an experienced bus passenger. She knew that she had to approach the bus driver to have her husband’s ticket book stamped and to ask for directions. As such, she should have entered the bus by the front doors.  Had she done so, the bus driver would have seen her enter and would have been more aware of her mobility limitations. In addition, Ms. Wong was not holding onto any of the available rails when she walked back to her seat. The Court noted that if she had been holding onto a rail, she might not have fallen at all, or might have sustained less serious injuries. Accordingly, the Court held the defendants 75% liable and the plaintiff 25% liable.

In assessing damages, the Court referred to the ‘golden years’ doctrine which provides that injuries sustained by people of advanced age will have a greater effect on their lives because their pleasures and activities have become limited by age, and further limitations are even more burdensome. Ms. Wong’s injuries included a fractured femur which required surgery, and the Court assessed general damages at $90,000 before contributory negligence.

This case suggests that bus drivers must be attentive to their passenger’s physical limitations  in order to satisfy the appropriate standard of care. Bus drivers who are inattentive to the safety of passengers exhibiting limitations, whether they are caused by age or disability, may be found liable in these circumstances.

Expertise

Insurance and Tort Liability
Municipal Liability