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Reverse Onus on Bus Drivers Overturned

If I am hurt due to abrupt braking while I am riding on a bus, should negligence be assumed of the bus driver merely because I am injured while on public transportation? Shouldn’t it be like other cases where I have to prove that the bus driver was negligent before they need answer the case against them?

Today’s case is a BC Court of Appeal decision (Benavides v. Insurance Corporation of British Columbia 2017 BCCA 15). At the previous trial in the Supreme Court, the plaintiff (Mr. Benavides) was awarded damages for injuries he sustained while riding on a bus that braked abruptly to avoid an unexpected hazard. The trial decision is Benavides v. Doe 2015 BCSC 1831. The trial judge had concluded that Mr. Benvides had made a case for the negligence of the bus driver on the following basis:

[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.

There are a number of Supreme Court cases that employ this line of reasoning in bus driver cases. The trial judge went on to conclude that the defendants could not prove that the driver was not negligent, and ordered that the defendants pay the plaintiff’s damages. It is noteworthy that in typical negligence cases, before the defendant need answer the case, the plaintiff must prove (on a balance of probabilities) that their injuries arise from the defendant’s negligence (that the defendant breached the standard of care owed to the plaintiff). This is an increased standard of proof than merely showing that they were injured as a passenger on public transportation.

The defendants appealed the trial decision, arguing that the trial judge incorrectly placed the onus on the defendants to prove that the driver was not negligent. The BC Court of Appeal agreed, concluding that the prima facie case was not made merely by being injured on public transportation: the plaintiff must always prove that the defendant breached the standard of care owed to the plaintiff before the defendant need answer the case against him or her. However, the Court did not remit the case to the trial judge, instead concluding that (despite the misarticulation of the test for negligence) the trial judge made a finding of fact that the defendant did indeed breach the standard of care owed:

[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.