Bus driver liability is a question you might ask if you fall off your seat. What happens in a case like this?
Imagine a person, we will call her Jane, riding a public transit bus (the “Bus”) when the Bus swerved to avoid a collision.
When the bus swerved, Jane was thrown from her seat and landed in the aisle of the Bus. She sustained a whiplash type injury and a broken leg. The insurance company (in this case, ICBC) told this injured passenger that the bus driver (ICBC’s insured) was not negligent.
In essence, despite Jane’s injuries, ICBC told the client that she was out of luck to claim damages. Is ICBC right? We always have to remember that ICBC is an insurance company and not a neutral party.
Or does Jane have a cause of action?
There is a heavy burden on bus drivers to establish that they used all proper and reasonable care and skill to avoid or prevent injury to passengers. This care required is of a very high degree. Once a passenger can establish their injuries, it is then up to the bus driver to prove that despite the injuries being caused, it was not because the bus driver was not doing their job.
In our case, the bus driver has to show that they acted prudently when they swerved. The bus driver has to show that they did pretty much everything they could to avoid the injury occurring.
The leading case that deals with the liability of a bus driver is Day v. Toronto Transportation Commission and Ernest R. Clarkson, (1940) S.C.R. 433.
Justice Hudson laid out the following important principle. “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.”
The law states that once an accident occurs, and injuries, there is at the outset, a case in negligence against the bus driver’s insurance. Then the bus driver has to prove the injuries were not a result of their negligence in driving the bus itself. The question as to bus driver liability is that he has to prove that the bus was being driven carefully at the time of the fall. The collision occurred because of something other than the manner in which the bus was being driven. In Jane's case, the bus driver may say that they acted prudently when avoiding the collision.
The law is also clear that the standard for bus drivers is not one of perfection. They have a high standard of care, but they are not required to be perfect in all instances. A defendant insurer is not effectively liable for every fall or mishap that happens on a bus.
So what happens with Jane?
The short answer is that in Jane’s case, we need more information in order to determine bus driver liability in this matter. When the bus driver swerved to avoid a collision, thus causing Jane to fall off her seat, did the bus driver do the right thing?
Maybe the court will find that the bus should have avoided the collision in a less abrupt manner. Maybe the court would have decided that Jane should have been more aware as she was sitting on the bus seat. Maybe the court will say that if Jane was more careful, she would not have fallen in the first place. We need more information about all of the circumstances surrounding what happened on this particular day.
Written by Val Hemminger, lawyer