IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Wong v. South Coast British Columbia Transportation Authority, 2013 BCSC 1118 Date: 20130625 Docket: M104364 Registry: Vancouver

Between: Yin Kung Wong Plaintiff And: South Coast British Columbia Transportation Authority doing business as Translink, Coast Mountain Bus Company Ltd., and Kristopher Pinnell Defendants

Before: The Honourable Madam Justice J. A. Power

Reasons for Judgment

Counsel for the Plaintiff: Counsel for the Defendants: Place and Date of Trial/Hearing: J. M. Cameron and D. M. Mah G. S. Sandhu Vancouver, B.C. November 5 - 9, 2012 and May 3, 2013 Vancouver, B.C. June 25, 2013

Place and Date of Judgment:

Wong v. South Coast British Columbia Transportation Authority INTRODUCTION [1]

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The plaintiff Yin Kung Wong (Ms. Wong) fell and broke her hip, while riding

a city bus in Vancouver on August 31, 2009. She alleges that the bus accelerated abruptly and without warning before she had a chance to be seated. She was 81 years old at the time of the incident. Ms. Wong seeks damages for pain and suffering, future care and special damages. [2] The bus was driven by the defendant Kristopher Pinnell and was operated by

South Coast British Columbia Transportation Authority doing business as Translink, Coast Mountain Bus Company Ltd. The defendants deny that any incident which could be characterized as abrupt or unexpected occurred. They deny any allegation of negligence and in the alternative argue that Ms. Wong was contributorily negligent. [3] The following issues arise in this case: a) Whether the injuries suffered by Ms. Wong were caused by the negligence of Mr. Pinnell and if so; b) c) [4] Whether Ms. Wong was contributorily negligent; The amount of damages (if any) that should be awarded.

As part of the analysis of the issues, the fact finding process is important

since there are two distinct accounts of how the accident occurred. The first version is the account of the incident by the plaintiff and her husband Robert Tang. The defence argues in contrast that the version of the defendant Mr. Pinnell is supported by the independent witness Mr. Kirkey and should be accepted. [5] In undertaking the fact-finding process, I must keep in mind the guidance from

the Court of Appeal in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) at para.11, that I must consider the preponderance of the probabilities evident in the circumstances and that I must consider the evidence as a whole. I must also keep in mind that truthfulness and reliability are not necessarily synonymous which is

Wong v. South Coast British Columbia Transportation Authority

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particularly important in a case like this since it is my view that all of the witnesses were doing their best to be truthful. BACKGROUND FACTS Liability Ms. Wong [6] Ms. Wong and her husband Robert testified with the aid of a Cantonese

interpreter. Ms. Wong was 84 years of age at the time of trial and 81 years of age at the time of the fall. She was an articulate woman who appeared younger than her 84 years. Ms. Wong testified that everyone told her that ... she didnt look 80. I would agree, however it is clear from her appearance that she is a senior citizen. [7] Ms. Wong was an experienced rider of the bus system in Vancouver. She

had an annual pass and rode the bus about three times per week. In her testimony, Ms. Wong noted that in twenty to thirty years of riding the bus she had never experienced a similar event nor suffered any injury. [8] On the day of the fall, August 31, 2009, Ms. Wong was coming from

Richmond where she had dim sum with her husband and her younger sister. She was travelling with both her husband and her sister at the time of the incident. She had taken the Canada Line from Richmond and exited at the City Hall stop located at the southeast corner of West Broadway and Cambie in Vancouver. [9] Ms. Wong crossed the street to the northwest corner of the intersection and

boarded a double length 99 B-line bus. She boarded through the rear doors of the bus. She acknowledged in cross-examination that she was aware that the best way to access courtesy seats reserved for elderly and disabled passengers was to enter the front of the bus. As she entered the back doors, she assisted her husband in getting settled in a seat close to the door. She described the bus as being quite empty with about twenty people on the bus.

Wong v. South Coast British Columbia Transportation Authority [10]

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Once her husband was seated, Ms. Wong took her husbands ticket book to

the front of the bus to get his ticket time stamped. Since Ms. Wong and her sister had passes, the passes did not need to be stamped. Ms. Wong described the bus as absolutely stationary when she went to the front. As she stamped her husbands ticket, Ms. Wong checked with the bus driver that she could get off at MacDonald Street. [11] Ms. Wong turned to go back to her husband, and took about two steps, when

without warning to her the bus driver pulled out into traffic in an abrupt motion. Ms. Wong did not have sufficient time to return to her seat prior to the bus entering traffic. She was not holding on to anything when she fell. Ms. Wong fractured her hip in the fall. Various passengers called out to the bus driver to stop the bus and he stopped the bus which was proceeding westbound on Broadway. As a result of the braking Ms. Wong slid forward from the point where she fell to the front of the bus near the fare box. [12] Ultimately an ambulance attended. Ms. Trinkhaus, a paramedic testified at

trial. She confirmed that the ambulance was dispatched at 3:20 and arrived at Broadway and Ash where the bus was stopped almost immediately. That location was less than one city block from the location where Ms. Wong boarded. A stamped ticket was retrieved from the floor of the bus and marked as an exhibit at trial. It is stamped at 3:13. Ms. Wong was taken to VGH and surgery was done on September 2, 2009. Mr. Tang [13] Ms. Wongs husband Robert Tang testified at trial. He confirmed that after

they boarded the bus, his wife went forward to get his ticket stamped prior to the bus being put in motion. He was 95 years at the time of trial. In my view, there was no clear evidence that can assist in determining how his wife fell. It was unclear whether he was testifying from his own memory or was testifying about the incident as described to him by his wife. It does not appear from the evidence that he was in a position to see anything in any event.

Wong v. South Coast British Columbia Transportation Authority Jeff Kirkey [14]

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Mr. Kirkey is 41 years old and was presented as an independent witness by

defence. He was sitting at the back of the bus when he saw an elderly Asian lady get up and move towards the front of the bus. He recalled ten to twenty passengers on the bus. He did not see the elderly lady board the bus. He said the bus was travelling as far as I remember meaning that the Asian lady was moving towards the front of the bus while the bus was in motion. Mr. Kirkey observed or felt a jerk on the bus that he did not know how to describe at trial. When asked in direct examination he described it as the kind of jerk that a travelling passenger would ordinarily expect. The passenger fell while making her way down the aisle. [15] When Mr. Kirkey observed the lady fall, he moved to the front of the bus to

assist. He said that everyone else got off the bus and that he wrote his contact information on a transfer as a possible witness. [16] In cross-examination Mr. Kirkey indicated that he had no idea whether the

lady had her ticket stamped before she fell. He recalled a strong jerk prior to the fall that could have occurred for a number of reasons. He did not know whether the jerk was strong enough to knock over the women if she was hanging on. He also did not recall telling a female paramedic that the driver had swerved to avoid an accident nor did he recall that the driver had rebutted his account in front of the paramedic. He acknowledged that both of those events could have occurred. Kristopher Pinnell [17] Mr. Pinnell was the bus driver operating the bus at the time of the incident.

He has worked for Coast Mountain Bus Company since 2007 and was hired after a challenging hiring process which included a written application and video test. He had been driving since he completed his training in April 2007. [18] On the day of the incident Mr. Pinnell had worked a split shift and had just

recommenced his shift at 2:37. He picked up his bus in the yard and did a pre-trip

Wong v. South Coast British Columbia Transportation Authority

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inspection for safety. He did not note any problems with steering, acceleration or braking of his bus. [19] Mr. Pinnell described his usual practice with respect to visual checks prior to

setting the bus in motion from Broadway and Cambie. He indicated that if a person was standing, or visibly disabled for any reason he would ask the person to safeguard himself or sit down. [20] On the day of the incident, Mr. Pinnell indicated that he followed his usual

practice and did not note anyone standing so he proceeded into traffic. He described being in Lane 2 when he suddenly heard a thud after he crossed Broadway and Ash. He looked down and saw a lady laying on the floor. He had not seen that lady prior to that. He testified that there was nothing out of the ordinary in terms of the bus operation at the time of the thud, however he had taken his foot off the accelerator. [21] Mr. Pinnell testified that as soon as he heard the thud and noted the lady on

the floor he stopped the bus, applied the parking brake and tried to assist the fallen passenger. It was clear that the lady was vocalizing that she was unwell and another lady was assisting her. He took steps to call via the transit communication system and returned to the fallen passenger. [22] While he was waiting for Emergency Health Services (EHS) he had bus

passengers demanding that he let them off. He did not open the doors until the EHS arrived. He described an ocean of people staring at him. He then moved the bus forward to curbside. He did not obtain any names of possible witnesses to the incident and described that issue in cross-examination as secondary. [23] Mr. Pinnell was cross-examined extensively on an incident report which he

filled out for his employer the day after the incident (Exhibit 14). A number of inconsistencies between his evidence at trial, and the incident report were brought out. Mr. Pinnell stated that he thought the bus was at least three-quarters full at trial, even though he acknowledged that he estimated 10 passengers on the incident

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report. He had ticked the box on the incident report indicating the passenger was holding on, even though he stated at trial that he had never seen her. Mr. Pinnell testified that he did not tick the box that the passenger was elderly because he did not see her that way. He ticked off the box indicating that Ms. Wong was carrying items, even though he did not know if the items on the floor were hers. [24] In cross-examination, Mr. Pinnell denied trying to change the witness

Mr. Kirkeys version of the incident, but acknowledged that he tried to discourage Mr. Kirkey from trying too hard to help by speculating as to what happened. He also conceded that he ticked the box seated load, even though it is clear that Ms. Wong was not seated at the time of the fall. He also described the notation in the incident report indicating the accident location as between Heather/Willow as an unfortunate error. [25] In cross-examination, Mr. Pinnell conceded that it was surprising that

Ms. Wong fell one foot from the fare box and that in the time prior to the fall, he never saw anyone coming down the aisle. He acknowledged that if he had seen Ms. Wong, he would have told her to sit down. He agreed that there is a policy and procedures manual for bus drivers and that there is a policy to allow elderly people a chance to sit before moving from a stopped location. He acknowledged that at examination for discovery he did not think such a policy was in place. [26] Finally, and significantly, in his description of the incident in the incident report

Mr. Pinnell stated I saw a women out of the corner of my eye come up to use the fare box whereas at trial he stated that just past Broadway and Ash he heard a thump next to me and saw a lady laying on the floor and that the first time he saw her was when he looked down and saw the woman laying on the floor. He stated at trial that there was no change in the bus speed at the time of the fall and that the thump happened independent of any movement of the bus. He was not able to explain why in the incident report he had ticked the box changing speed. [27] It is clear from the evidence at trial that the impact of the incident both at the

time and subsequently has been significant for Mr. Pinnell. In cross-examination he

Wong v. South Coast British Columbia Transportation Authority

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confirmed that he felt he was facing termination at the time of the fall but stated that concern related to his being the victim of two prior assaults. Mr. Pinnell confirmed that after the incident he called a union steward because he was alone and that the union steward was also a friend. He stayed on the phone with the union steward even after his supervisor arrived because he was more comfortable talking to his friend. ANALYSIS [28] Having considered all of the evidence relating to the background to the

incident, I have determined that I prefer the evidence of Ms. Wong over the evidence of Mr. Pinnell and Mr. Kirkey as to how the fall occurred. As I have indicated, I am of the view that all of the witnesses were attempting to be truthful in their evidence. However, I accept the plaintiffs counsel submissions that Ms. Wong was in the best position to know what occurred prior to her fall. It is my view that her version of the incident accords with common sense and with the preponderance of the probabilities evident from the evidence at trial. There is no evidence to suggest that the fall occurred for any medical reason as suggested by the defence, and that the only explanation that makes sense is that there was an abrupt acceleration into traffic which was not expected by Ms. Wong. [29] The defence submits that Mr. Pinnells evidence is corroborated on all

material points, however there are a number of difficulties with the defence evidence of Mr. Pinnell and Mr. Kirkey. It is my view that Mr. Kirkeys evidence is not of great assistance because of his opportunity to observe and his attention is only drawn to Ms. Wong after the fall. In addition, Mr. Kirkeys evidence is inconsistent with Mr. Pinnells on a significant point. Mr. Pinnell stated that there were no sudden movements on the bus which could explain the fall, whereas Mr. Kirkey stated there was a sudden jolt on the bus and then Ms. Wong fell. It is my view that Mr. Kirkeys evidence is more consistent with the evidence of Ms. Wong because she describes the incident as sudden acceleration followed by sudden braking when the passengers called out to Mr. Pinnell. That is when she slid forward to the fare box.

Wong v. South Coast British Columbia Transportation Authority [30]

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It is my view that Mr. Kirkey was not paying attention to what Ms. Wong was

doing prior to the fall, nor was there any reason for him to be paying attention. It is not clear from his evidence what the cause of the sudden jolt was. It was Ms. Wongs fall which drew his attention to the incident. I am of the view that while Mr. Kirkey was trying to be helpful, his evidence is not sufficiently reliable to accord it any weight. [31] Similarly, in assessing Mr. Pinnells evidence, there are numerou s internal

inconsistencies that arose at trial in direct and cross-examination, and inconsistencies between the trial evidence and what Mr. Pinnell recorded in the incident report. While some inconsistencies in an incident such as this can be expected, there are so many inconsistencies present that I cannot place a great deal of weight on Mr. Pinnells evidence. As I have indicated, I am not suggesting that Mr. Pinnell deliberately attempted to mislead the court. However, his evidence is limited because in large part he is reconstructing the event after it occurred. It is my view that his evidence was based more on his usual practice than any independent recollection of the incident. It is also clear that Mr. Pinnell was shaken and upset from the incident and other passengers reaction to the delay which may have affected his recollection of what occurred. [32] Accordingly, I make the following findings based on the evidence at trial: 1. Ms. Wong boarded double length 99 B-line bus from the rear doors. Ms. Wong was an experienced bus rider and she knew the best way to access seats for elderly and disabled passengers was to enter via the front doors. 2. Once she had her husband seated she proceeded to the front of the bus to have her husbands ticket stamped. 3. The bus was stationary when Ms. Wong proceeded to the front of the bus.

Wong v. South Coast British Columbia Transportation Authority 4.

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In addition to stamping her husbands ticket, she asked the bus driver Mr. Pinnell whether the bus stopped at MacDonald Street.

5.

Ms. Wong turned and had taken about two steps from the fare box when the bus driver pulled into Broadway traffic in an abrupt motion.

6.

Ms. Wong fell and passengers called out to alert Mr. Pinnell to the incident.

7. 8. 9. 10.

Mr. Pinnell abruptly braked and Ms. Wong slid forward to the fare box. Ms. Wong fractured her hip in the incident. Ms. Wong was not holding onto anything at the time that she fell. The bus stopped near Broadway and Ash, approximately one block from where the bus was boarded by Ms. Wong. Mr. Pinnell stopped the bus after passengers alerted his attention to the fall.

Legal Principles - Liability [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.

Wong v. South Coast British Columbia Transportation Authority

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[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. [19] 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. [20] In Visanji, the court after canvassing the pertinent authorities provides the following helpful formulation of the principles which govern the determination of negligence against a public carrier:

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[29] Whether the burden upon a public carrier in cases of injury or accident sustained by a passenger can be referred to as the shifting of the burden as in Day, or a matter of inferences to be drawn from the evidence once the plaintiff has established a prima facie case of negligence against the defendant carrier as articulated in Fontaine, it is for the defendant to present evidence to answer, or be found negligent: Nice v. Calgary (City) (2000), 83 Alta. L.R. (3d) 1, 2000 ABCA 221, at para. 46, leave to appeal to S.C.C. ref'd, [2000] S.C.C.A. No. 483 (S.C.C. Mar. 29, 2001).

[35]

In Prempeh, the court found that the bus drivers sudden and vigorous

application of the brakes in context established a prima facie case of negligence (para. 24) and the court was not satisfied that the defendants established that the bus driver conducted himself in a reasonable and careful manner consistent with the high duty of care imposed on those engaged in public transit (para. 29). [36] In Patoma v. Clark, 2009 BCSC 1069, the 68 year old plaintiff fell when the

defendant bus driver put the bus in motion before the plaintiff was seated. The court in that case found that there was nothing negligent about the bus drivers failure to warn Mr. Patoma that the bus was about to start. [37] In so finding the court said at paras. 16 and 17:
[16] There is no magic portal one passes through at age 65 that transforms a person from able-bodied to frail elderly. Mr. Patoma is one of those fortunate people who remains fit and healthy well past 65. As noted by Mr. Justice Barrow in McNaught v. Alblas, 2006 BCSC 535, [2006] B.C.J. No. 764, in addressing a similar case involving a fall on a bus of a 77-year-old plaintiff at para. 30: ... [T]here was nothing about the plaintiff that would put a reasonable bus operator on notice that it was necessary to take any particular cautions other than those extended to every passenger prior to putting the bus in motion. The mere fact that she was elderly is not determinative of the issue. Many elderly people are able to manage safely on a bus without assistance, or without the driver being required, in order to exercise reasonable care, to allow them to be seated before putting the bus in motion. He went on at paragraph 35: There was nothing to draw the attention of the driver to the need to take any particular precautions in relation to the plaintiff. I come to that conclusion recognizing that she was obviously elderly. She was, however, obviously, also spry and reasonably fit.

Wong v. South Coast British Columbia Transportation Authority

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[17] The policy that requires bus drivers to refrain from setting the bus in motion until a passenger is seated, or until they have been given a warning, is directed at passengers whose ability to hold on and remain upright is impaired by physical disability, which can include the frail elderly, or people who are inebriated, or carrying burdens, such as children or parcels. It is the degree of impairment which is determinative, not simply the age of the passenger.

[38]

In my view, the Patoma case is distinguishable from the case at bar.

Although I find that Ms. Wong was fit and healthy for her 81 years, she was nevertheless clearly a senior citizen with some mobility impairment by reason of her advanced years. In addition, in this case, Ms. Wong had just prior to the fall spoken to Mr. Pinnell and had sought his assistance in determining whether the bus stopped at MacDonald Street. She had just left the fare box and was returning to her seat when Mr. Pinnell abruptly pulled out into traffic. In these circumstances, Mr. Pinnell should have had a heightened awareness that Ms. Wong was not yet in her seat. [39] In McNaught v. Alblas, 2006 BCSC 535, the court stated at paras. 3 and 4:
[3] The parties do not disagree as to the applicable law. It is appropriate to first note the comments of Hudson J. in Day v. Toronto Transportation Commission, [1940] 4 D.L.R. 484 (S.C.C.) where he wrote: 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] The most recent statement of the law from the Court of Appeal in this province is found in Wang v. Harrod [sic] (1998), 48 B.C.L.R. (3d) 199 [Wang]. The law as there explained was conveniently summarized by Humphries J. in Lawson v. British Columbia Transit Authority, [2002] B.C.J. No. 2297, 2002 BCSC 1438 [Lawson]. There at para. 18 she said this: ... once an accident has occurred, the defendant must meet the heavy burden of establishing that he used all proper and reasonable care and skill to avoid or prevent injury to the passenger. The standard of care imposed is the conduct expected of a reasonably prudent bus driver in the circumstances. The court must consider the experience of an average bus driver, as well as anything that the particular driver knew or should have known about the passenger. The standard of care required is higher when the driver knew or ought to have known that the passenger was handicapped or elderly.

Wong v. South Coast British Columbia Transportation Authority [40]

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In all of the circumstances of the case at bar, I am of the view that Mr. Pinnell

breached the standard of care of a reasonably prudent bus driver by entering traffic without warning Ms. Wong that he was about to enter traffic and without doing an adequate visual check to ensure that Ms. Wong had returned to her seat or was securely standing. In so doing he was also in breach of the Operators Policy and Procedures Manual, para 6.11. Contributory Negligence [41] I turn now to the question of whether or not the plaintiff was contributorily

negligent. As noted in Prempeh v. Boisvert:

[32] The essential inquiry is whether the plaintiff failed to take reasonable care for her own safety and whether the failure was one of the causes of the incident: Bradley v. Bath, 2010 BCCA 10 at para. 27.

[42]

Each case must be considered on its own facts and in this case I accept the

defendants submission that it was negligent of Ms. Wong, as an experienced bus rider, to enter via the rear doors when she knew that she required directional assistance and she knew that she needed to validate her husbands ticket. Had she entered via the front doors, Mr. Pinnell would have been more aware of her presence and of her age and circumstances. It was also negligent for Ms. Wong not to hold onto the many bars and seat holds available to her as she returned to her seat. I find it probable that holding onto something would have prevented the fall or reduced the injury. [43] However, it is also my view that the plaintiff was entitled to expect some

warning of the need for caution in light of the imminent departure of the bus. In the circumstances, the degree of negligence of Mr. Pinnell as the bus driver was greater than that of Ms. Wong. [44] I am of the view that the degree of negligence is similar to Wang, where the

trial judge found the defendant bus driver 75% liable for the injuries suffered and the plaintiff 25%. In that case, the plaintiff stood up at a red light to remove her coat and fell when the light changed and the defendant put the bus in motion.

Wong v. South Coast British Columbia Transportation Authority [45] In all of the circumstances of this case, I apportion liability 75% to the

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defendant and 25% to the plaintiff. DAMAGES [46] Ms. Wongs general practitioner Dr. Cham-Wah Yuen testified at trial and was

cross-examined. In his medical report dated November 29, 2010 (Exhibit 6), Dr. Yuen summarized Ms. Wongs injury as follows:
In summary, Ms. Wong apparently fell in a bus and sustained fracture to the neck of her right femur. She had received surgery by Dr. Broekhuyse, an orthopedic surgeon. She recovered quite uneventfully, received rehabilitation program in Holy Family Hospital and received further home physiotherapy after discharge from Holy Family Hospital. She had some pain in her right hip from January to March of 2010 and required some Tylenol #3 tablets for pain control. She now walks with a cane and has been quite mobile. Her prognosis is good though she may have some pain in the fracture site from time to time. She needs to use a cane to give support on walking. Apparently she can perform her usual housework.

[47]

In her letter dated March 5, 2012 (Exhibit 8), Theresa Wong, Occupational

Therapist, summarized the impact of the accident on Ms. Wongs life:

At the time of the bus incident, Ms. Wong was living in the Chinese Freemason Manor. It was a seniors complex that offered no additional support services. Ms. Wong was independent with personal care, meal preparation, grocery shopping, and house cleaning. Following the incident, Ms. Wong presents with limitations in functional mobility that affect her ability to complete daily activities. She had hired assistance for meal preparation and cleaning shortly following her discharge from the rehabilitation facility. She subsequently moved into the Icelandic Care Home, a care facility where meals and weekly cleaning services are provided. Ms. Wongs relocation to this facility would appear appropriate given her limitations in functional mobility.

[48]

Dr. Horlick is an expert orthopedic surgeon. He prepared a report which

summarized the injury and noted that he would not anticipate that Mrs. Wong would require more extensive assistance with her mobility needs or with basic activities of daily living as a direct consequence of her right hip fracture or residua of same.

Wong v. South Coast British Columbia Transportation Authority [49]

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At the time of the fall Ms. Wong was in good health. She lived a very active

life and was able to walk without aids, swim two to three times per week, and shop for groceries and other necessities. She travelled frequently and in the words of her son, Samson Wong was sociable, a very busy lady and had lots of friends. [50] It is clear from all of the evidence including the evidence of Samson Wong,

that the impact of the fall was significant. Samson Wong indicated that his care for his mother had increased about ten times more than before and that the impact had not just impacted her physically, but mentally. She can no longer travel independently and walks with a cane. General Damages [51] Ms. Wong sought an award of $95,000 to compensate her for pain, suffering

and loss of amenities. The defence argues that an appropriate amount for pain and suffering is in the range of $60,000 to $70,000. [52] I was referred to Irvine v. Cara Operations Ltd., 2002 BCSC 1581, in which

the 84 year old female plaintiff was awarded $60,000; Simon v. Strata Plan KAS2093, 2007 BCSC 1592, in which the plaintiff was awarded $100,000 (discounted to $50,000 for contributory negligence); and Etson v. Loblaw, 2010 BCSC 1865, where the 76 year old plaintiff was awarded $90,000. In Etson, the court referenced the golden years doctrine that for a person in advancing years an impairment in movement is even more profound since as one advances in age ones pleasures and activities become more limited so any further limitation becomes even more serious (para 66). I was also referred by the defence to Falconer v. Le, 2003 BCSC 1434. [53] Having considered the general principles, the cases referenced and the non-

exhaustive list of factors in Stapley v. Hejslet, 2006 BCCA 34 (para. 46), I am of the view that an award for general damages of $90,000 is appropriate in this case. That amount should be discounted by 25% for contributory negligence resulting in a sum of $67,500.

Wong v. South Coast British Columbia Transportation Authority Cost of Future Care [54]

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In OConnell v. Yung, 2012 BCCA 57, the court noted the approach to be

taken in determining future care costs at paras. 55 and 56:

[55] The law is settled as to the appropriate approach to be taken in assessing future care costs. In Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at paras. 21-22, [2002] 1 S.C.R. 205, referred to by the trial judge, the Court articulated the test: [21] Damages for cost of future care are a matter of prediction. No one knows the future. Yet the rule that damages must be assessed once and for all at the time of trial (subject to modification on appeal) requires courts to peer into the future and fix the damages for future care as best they can. In doing so, courts rely on the evidence as to what care is likely to be in the injured person's best interest. Then they calculate the present cost of providing that care and may make an adjustment for the contingency that the future may differ from what the evidence at trial indicates. [22] The resulting award may be said to reflect the reasonable or normal expectations of what the injured person will require. Jane Stapleton, The Normal Expectancies Measure in Tort Damages (1997), 113 L.Q.R. 257, thus suggests, at pp. 257-58, that the tort measure of compensatory damages may be described as the 'normal expectancies' measure, a term which more clearly describes the aim of awards of compensatory damages in tort: namely, to re-position the plaintiff to the destination he would normally have reached ... had it not been for the tort. The measure is objective, based on the evidence. This method produces a result fair to both the claimant and the defendant. The claimant receives damages for future losses, as best they can be ascertained. The defendant is required to compensate for those losses. To award less than what may reasonably be expected to be required is to give the plaintiff too little and unfairly advantage the defendant. To award more is to give the plaintiff a windfall and require the defendant to pay more than is fair. [Emphasis added.] [56] Further, as Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 27, makes clear, [a] future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation.

[55]

In this case, I am satisfied based on the report and evidence of Theresa

Wong, along with all of the evidence, that the plaintiff has established future care costs on the balance of probabilities. Specifically, I am of the view that Ms. Wong moved into the Icelandic Care Home that provided increased support levels as a direct consequence of the accident. I am satisfied that there is an evidential link

Wong v. South Coast British Columbia Transportation Authority

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between Theresa Wongs recommendations and the accident. I prefer Theresa Wongs evidence where it conflicts with Dr. Yuen and Dr. Horlick since Ms. Wongs report and recommendations specifically considers the needs of Ms. Wong post-accident. [56] I have considered the report of Kevin Turnbull, economist, and note that his

report merely provides a guide by which to assess these costs and a means to calculate them. Mr. Turnbull notes that the increased cost of care in present value may be estimated at $63,765 for the assisted living portion of the costs. [57] I am also of the view that it is probable that Ms. Wong would have required

additional care by virtue of her own needs or those of her husband, and therefore would have moved into a higher care facility at some future point even if the accident had not occurred. Further, she may have required some of the rehabilitation and support services recommended by Theresa Wong even without the accident. In all of the circumstances, (and considering the adjusted monthly rate the assisting living) I am assessing a present value of $40,000 for all future care costs. That sum should be discounted by 25% for contributory negligence resulting in an award of $30,000. Special Damages [58] The plaintiff claims $22,810.40 based on the schedule at Exhibit 5. I am

satisfied on the evidence that those costs were incurred as a result of the accident. The special costs should be reduced by 25% as a result of my finding on contributory negligence. [59] In the result I order: General Damages ($90,000.00 x75%) Future Care Costs ($40,000.00 x 75%) Special Damages ($22,810.40 x 75%) TOTAL $ 67,500.00 30,000.00 17,107.80 $114,607.80

Wong v. South Coast British Columbia Transportation Authority COSTS [60] Costs may be spoken to if they cannot be agreed to by the parties.

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J. A. Power, J. The Honourable Madam Justice J. A. Power