April 2, 2014

Kevin Gourlay

Kevin Gourlay

Reasons today from Mr. Justice Abrioux in Bideci v. Neuhold, 2014 BCSC 542, a case involving the liability of common carriers.  The case arose from injuries suffered by a 93-year-old man who fell when a bus driver pulled out from a stop before the plaintiff had a chance to exit.

The vast majority of cases we deal with involve similar burdens and onuses of proof.  It must be kept in mind that this changes when the plaintiff is injured on a “common carrier,” most commonly buses.  Justice Abrioux reiterated the law and how it places a heavy burden on common carriers to disprove negligence when one of their passengers is hurt:

[56]         Day v. Toronto Transportation Commission, [1940] S.C.R. 433, is the seminal case respecting the liability of public carriers. In Day, a passenger fell to the floor and was injured when the streetcar operator applied the emergency brake. The standard of care was stated by Hudson J. at 441 as “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.”

[57]         The principles of liability arising from Day have been articulated into 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.

See: Visanji v. Eaton and Coast Mountain Bus Co. Ltd., 2006 BCSC 656 at para. 26.

In Bideci, the driver was unable to displace the onus and was found liable.  The plaintiff was contributorily negligent for failing to take reasonable care for his own safety with liability split 66.6:33.3 in his favour.

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