IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151008

Docket: M150347

Registry:
New Westminster

Between:

Manuel Benavides

Plaintiff

And

John
Doe, Insurance Corporation of British Columbia,
South Coast British Columbia Transportation Authority, doing
business as Translink, and Coast Mountain Bus Company Ltd.

Defendants

Before:
The Honourable Mr. Justice Pearlman

Reasons for Judgment

INTRODUCTION

[1]           
The plaintiff, Manuel Benavides, brings this action to recover damages
for injuries he claims to have suffered as a passenger on a bus operated by the
defendant, South Coast British Columbia Transportation Authority, doing
business as Translink and/or Coast Mountain Bus Company Limited (“Translink”).  Mr. Benavides,
who is now 76 years old, claims that he fell on January 1, 2012 when the bus on
Translink’s route number eight stopped suddenly as it travelled north on Fraser
Street in East Vancouver, near 22nd Avenue.

[2]           
The plaintiff claims that as a result of the defendant’s negligence, he
sustained soft tissue injuries to his neck and back, contusions to his right
chest and rib cage, a strain or sprain to both hands, injury to the right side
of his head and temporomandibular joint (“TMJ”), dental injuries, contusions to
both knees and a large post-traumatic cyst on his right knee which required
surgical removal. The plaintiff seeks damages for pain and suffering and loss
of enjoyment of life, costs of future care, and special damages.

[3]           
For its part, Translink contends that the plaintiff has failed to
establish he was injured on a bus.  Alternatively, if the plaintiff has made
out a prima facie case that he was injured on a bus, Translink argues
that the evidence falls short of establishing that it breached the high
standard of care that it owed to the plaintiff as a public carrier. The
defendant also submits that Mr. Benavides caused or contributed to his
injuries by failing to take adequate care for his own safety.  In the further
alternative, Translink argues that if the plaintiff has established that he was
injured as a result of the defendant’s negligence, the injuries attributable to
the incident of January 1, 2012, as opposed to Mr. Benavides’ pre-existing
conditions, were minor.  Translink submits that the plaintiff has a history of
cognitive impairment that renders his evidence unreliable.

ISSUES

[4]           
The following issues arise for determination:

Liability

(a) Was the plaintiff injured while
a passenger on a bus operated by the defendant Translink?

(b) If so, did the defendant
carrier breach the standard of care it owed to the plaintiff?

(c) Was there negligence on the
part of the plaintiff that caused or contributed to his injuries?

Damages

(d) What injuries did the plaintiff
suffer as a result of the January 1, 2012 accident?

(e) What amounts, if any are
payable to the plaintiff as damages for non-pecuniary loss, cost of future care
and special damages?

[5]           
In order to decide these issues, it will also be necessary to assess the
reliability of the plaintiff’s testimony.

LIABILITY

(a) Was the
plaintiff injured while a passenger on a bus operated by the defendant
Translink?

Background

[6]           
Mr. Benavides was born in El Salvador and raised in Mexico.  He
immigrated to Canada from Mexico in 1989, is separated from his wife, and has
an adult son who resides in Mexico.  The plaintiff, who formerly worked as a
concrete finisher, retired some years before the bus accident.  He lives alone
in an apartment on Smithe Street in downtown Vancouver. The plaintiff speaks
little English.  He testified at trial with the assistance of a
Spanish-language translator.

The Accident

[7]           
Mr. Benavides recalled that on January 1, 2012 he took the number
eight bus to 49th Avenue and Fraser Street where he shopped at the Polo
supermarket.  After purchasing some groceries, he returned to the bus stop at
about 12.20 p.m. to await a northbound number eight bus.  While he was waiting,
Ms. Kim Di Giralomo, an acquaintance of the plaintiff, joined him. She was
carrying a number of shopping bags. The plaintiff offered to help her carry her
purchases to her home on Fraser Street at 22nd Avenue. They boarded the bus
together. The plaintiff recalled that the driver had dark skin and “not a lot
of hair”.  Both Mr. Benavides and Ms. Di Giralomo testified that the
bus was crowded, with lots of passengers on board.

[8]           
Mr. Benavides testified that he sat in a passenger seat on the
right side of the bus. He intended to disembark at the stop at 22^nd Avenue
and Fraser. One stop before that, he stood up. He rang the bell to let the
driver know that he wanted to get off at the next stop.  Mr. Benavides
said that he moved to the rear door and held on to a vertical metal bar with
one hand while holding the shopping bags in his other hand. He said the bus was
travelling at normal speed but stopped suddenly after it had passed the bus stop
at 22^nd and Fraser. He said there was no warning from the driver,
and that as a result of the bus braking suddenly, his head struck the metal bar
he was holding, dislodging his glasses and damaging the metal bridge in his
mouth.  Mr. Benavides says he fell to the floor, striking his knees. He
says his glasses were broken and that he left them on the bus. The plaintiff
also claims that he removed his denture as some of his teeth were damaged.

[9]           
The plaintiff testified that he also suffered a swollen face, pain in
both hands, dizziness, and pain in his neck and back as a result of the
accident.  Mr. Benavides testified that he hurt both knees when he fell on
the bus and that he later developed a large cyst in his right knee that
required surgical removal.

[10]       
Mr. Benavides did not remember whether he cried out when he fell.
In cross-examination, he testified that he did not say anything to the driver. 
He explained that he does not know English and was very nervous. The plaintiff
said there were lots of passengers on the bus, but that nobody tried to help
him.  According to Mr. Benavides, after they left the bus, Ms. Di Giralomo
wrote down and provided him with the four digit number of the bus.  He thought
the bus number Ms. Di Giralomo gave him was 2538.

[11]       
The plaintiff was able to walk to Ms. Di Giralomo’s home, which is
located close to the bus stop.  Mr. Benavides brought Ms. Di
Giralomo’s shopping bags to her apartment and after a brief stay, told her that
he was not feeling well. He said that while he was at Ms. Di Giralomo’s
apartment he started feeling pain in his knees and jaw, that his head ached,
and that he was dizzy.

[12]       
After leaving Ms. Di Giralomo’s home, Mr. Benavides waited for
and boarded another number eight bus and made his way home. Later that
afternoon, he took a taxi to St. Paul’s Hospital. The emergency department was
busy. After waiting for treatment for about one and a half hours without
receiving any care, he returned to his home.

[13]       
The plaintiff testified that on January 3, 2012 he went to see his
family physician, Dr. Benitez-Laso, and told him about the accident and the
pains in his neck and back.  He recalled that Dr. Benitez-Laso examined
his face and knees.  Dr. Benitez-Laso confirmed that the plaintiff came to
his office on January 3, 2012, and mentioned that he had been involved in an
accident.  However, Dr. Benitez-Laso said that Mr. Benavides had
previously booked the January 3 appointment for his annual physical
examination.  Because the plaintiff’s injuries did not appear to be
“life-threatening”, Dr. Benitez-Laso had him return on January 4, 2012 for
a complete assessment of his injuries.

[14]       
Ms. Di Giralomo confirmed that she lives on Fraser Street near 22nd
Avenue. She testified that she went shopping on January 1, 2012, saw Mr. Benavides
at the bus stop at 49th and Fraser and boarded the number eight bus with him. Ms. Di
Giralomo confirmed that the bus was a Translink bus travelling on Fraser Street. 
She thought they boarded the bus in the afternoon. She recalled that before the
bus braked, Mr. Benavides was standing beside her near the pole. She said
she was not paying attention and did not remember the plaintiff ringing the
bell.  Ms. Di Giralomo testified that the bus stopped suddenly at the bus
stop at 22nd and Fraser. The next thing she noticed was Mr. Benavides on
the floor. She did not see him fall, did not see him hit the pole, did not
remember if he was wearing glasses and did not see his dentures come out of his
mouth.

[15]       
Ms. Di Giralomo said the bus was packed but that nobody helped or
said anything to the driver. She recalls that Mr. Benavides was swearing
in Spanish.

[16]       
Contrary to Mr. Benavides’ testimony, Ms. Di Giralomo said
that she did not get the number of the bus, did not write it down, and did not
give it to Mr. Benavides.

[17]       
She recalled that when they arrived at her apartment, Mr. Benavides
told her he hit the pole and said something about his head, his side and his
knee. She did not observe any swelling to the side of his face. She said she
did not see anything wrong with him, and that he was walking well when he left
her house.

[18]       
Ms. Di Giralomo testified in cross-examination that at the time of
the accident, Mr. Benavides smelled of alcohol and that it was the middle
of New Year’s Day. She thought he had been drinking that day because she could
smell the alcohol on his breath. However, she said he was not intoxicated at
the time of the accident. In cross-examination, the plaintiff denied that he had
a problem with alcohol, or that he had consumed alcohol on the day of the
accident.

[19]       
The plaintiff was familiar with the number eight route, which he
travelled twice a week.

[20]       
Mr. Benavides testified that although he frequently rides the number
eight bus route, he never saw the driver again. He said that following the accident,
his pain and limited mobility prevented him from searching for the bus or the
bus driver until about a year after the accident.  The plaintiff said that he
went to the bus terminal on Marine Drive to look for a bus with the number that
he recalled Ms. Giralomo had given to him after the accident.  He did not
locate the bus at the terminal.  However, he testified that he saw bus number
2358 a few days later, wrote down the number and licence plate number, and gave
that information to his counsel.

[21]       
The plaintiff’s evidence concerning the time and circumstances in which
he obtained the bus unit number is not reliable.  On January 31, 2012,
Translink completed a claim report for its insurer, recording the claim made by
or on behalf of Mr. Benavides.  Translink’s claim report recorded the time
and date of loss as 12:30 p.m. on January 1, 2012, included the bus vehicle
number 2538 and identified the location of the incident as Fraser and 23rd
Avenue.

[22]       
Mr. Mark McKenzie, a Translink instructor and former bus driver,
gave evidence on behalf of the defendants.  Mr. McKenzie testified that at
some time before January 31, 2012 Translink received a claim report which, in
addition to providing the date, time and location of the bus accident on the
number eight route, included the bus unit number 2538 and the license plate
number of the bus. I find that Mr. Benavides, or more likely someone
acting on his behalf, provided that information to Translink within a month of
the incident.

[23]       
Translink conducted an internal tracing procedure which identified three
number eight buses that were at the location of the accident at or about the
time the plaintiff claimed he was injured.   One of those three buses was unit number
2537. The driver of that bus, Mr. Jay Garcia, was identified in
Translink’s tracing report as a “40ish”, balding Caucasian male.  Each of the
three Translink drivers reported that no incident occurred on their bus.

[24]       
Mr. McKenzie confirmed that bus drivers are employees of Translink;
that Translink operates the number eight north and southbound route on Fraser
Street; and that Translink was the only bus carrier operating a bus route along
Fraser Street between 46^th Avenue and 23^rd Avenue on
January 1, 2012.

[25]       
Mr. McKenzie also testified in cross-examination that the incident
recorded in Translink’s claim report would have been called in on the
defendant’s customer service line.

[26]       
Mr. McKenzie testified that bus drivers are trained to deal with elderly
passengers; that it is common for passengers to stand; and that it is expected
that seated passengers will often get up to stand by the exit doors in
anticipation of getting off at the next stop, instead of remaining seated until
the bus has stopped. Bus drivers are also trained to slow down as they pull
into regular stops, rather than to drive at a normal speed and then brake
abruptly at the stop.

[27]       
Mr. McKenzie said that bus drivers are trained to observe
passengers as they disembark. If a passenger has been injured, drivers are
trained to determine whether he or she requires medical attention.  Even if the
passenger does not require medical attention, the driver is required to submit
an incident report to Translink.

[28]       
Here, because Mr. Benavides left the bus without telling the driver
about his fall, there was no incident report.

[29]       
In cross-examination, Mr. McKenzie agreed that it was not normal
for a bus driver to drive right up to a bus stop at normal speed and then stop
suddenly.  He agreed that abrupt stops can cause injury to passengers aboard
the bus and that drivers are trained to do everything possible to avoid sudden
stops, except when they are necessary to avoid emergency hazards.

The Plaintiff’s Cognitive Limitations

[30]       
The defendants submit the plaintiff’s evidence that he was injured when
he fell on the number eight bus is so unreliable that it ought not to be
accepted. The defendants say that Mr. Benavides’ history of cognitive
impairment, which predates the accident, undermines his ability to provide an
accurate account of the events of January 1, 2012. They say his recollection is
also clouded by his consumption of alcohol.  Relying on Ms. Di Giralomo’s
evidence that Mr. Benavides smelled of alcohol, the defendants invite the
Court to find that the plaintiff was intoxicated at the time of the accident.

[31]       
The plaintiff’s general practitioner, Dr. Benitez-Laso, confirmed
that Mr. Benavides had problems with his memory before the bus accident.  He
said the plaintiff had suffered a stroke many years ago resulting in some
degree of cognitive impairment.  Dr. Benitez-Laso’s clinical notes record that
on December 30, 2009 the plaintiff reported experiencing confusion and problems
with poor sleep; on May 4, 2010, after the plaintiff reported he was assaulted,
fell on the back of his head and lost consciousness, Dr. Benitez-Laso diagnosed
concussion; on August 5 and October 12, 2010 the plaintiff reported periods of
confusion and forgetfulness; and on March 7, 2011 he complained of severe forgetfulness.
Dr. Benitez-Laso referred the plaintiff to Dr. Brian Thiessen, a
neurologist, who assessed the plaintiff on September 19, 2011.  Dr. Thiessen
found the plaintiff to be alert and oriented to date and location.  However, he
was unable to perform some of the cognitive tests administered by the
neurologist.  Dr. Thiessen concluded that the plaintiff had some cognitive
difficulties that went beyond his limited command of English and low
educational status.  He thought Mr. Benavides might suffer from early
dementia.

[32]       
At trial, the plaintiff had no recollection of the assault of May 2010
recorded in Dr. Benitez-Laso’s clinical record on May 4, 2010.  Mr. Benavides
also could not remember attending his examination for discovery some 10 months
before trial. The plaintiff was examined for discovery on May 14, 2014.  During
his examination, which commenced at 10:50 a.m. and lasted until 3:35 p.m., he
was asked and answered 442 questions (Exhibit 3, Agreed Statement of Facts).

[33]       
In cross-examination, defence counsel suggested to Dr. Benitez-Laso
that the plaintiff had a history of alcohol abuse.  The plaintiff’s physician
testified that Mr. Benavides usually comes to his appointments at 7:30 a.m.
on Monday mornings with the smell of alcohol on his breath.  He agreed that
alcohol can impair memory but disagreed that the plaintiff had a history of
alcohol abuse.  Dr. Benitez-Laso described the plaintiff as "quite
with it" and able to handle a coherent conversation.   He described the
plaintiff as forgetful but denied Mr. Benavides was completely unreliable.
He rated the plaintiff’s cognition level at 7 or 8 out of 10.  Dr. Benitez-Laso
agreed that poor sleep and alcohol can accentuate early dementia, but
emphasized that the plaintiff’s forgetfulness fluctuates.  He noted that when the
plaintiff comes to see him he travels on his own from Vancouver to Surrey.  Dr. Benitez-Laso,
who communicates with the plaintiff in Spanish, thought Mr. Benavides was
able to provide reliable information most of the time.

[34]       
In light of the plaintiff’s history of cognitive difficulties, which
includes some cognitive impairment as the result of a stroke, complaints of
forgetfulness and a diagnosis of possible early dementia, I approach Mr. Benavides’
evidence with caution.  In doing so, I also take into account his inability to
recall either the assault of May 2010, which was a significant event, or his
attendance at an examination for discovery less than a year before trial.

[35]       
However, the plaintiff was able to describe in some detail his travels on
the number eight bus on January 1, 2012, his encounter with Ms. Di
Giralomo, his fall on the bus and the aftermath of the fall. Mr. Di
Giralomo confirmed that she met the plaintiff at the bus stop at 49th and
Fraser, that they boarded a northbound number eight Translink bus together, and
that the plaintiff fell on the bus when it stopped suddenly at the bus stop at
Fraser and 22nd Avenue.  Dr. Benitez-Laso confirmed that on January 3,
2012, two days after the incident, the plaintiff reported he had been injured
in an accident, and that on January 4, 2012 the plaintiff provided a
description of how he had been injured when the bus he was riding came to a
sudden stop. Dr. Benitez-Laso also explained that his patient’s
forgetfulness fluctuates, and that in his experience, Mr. Benavides is
usually able to provide him with reliable information.

[36]       
Dr. Benitez-Laso impressed me as an expert witness who gave his
evidence in a measured and matter-of-fact manner, and who was well aware of his
obligation to assist the court.  As the plaintiff’s general practitioner, he
has had the opportunity to observe Mr. Benavides and gauge the extent of
his cognitive impairment over a number of years.  I give considerable weight to
Dr. Benitez-Laso’s evidence that while the plaintiff’s memory problems
fluctuate, he is usually able to provide reliable information to his physician.

[37]       
Where there are discrepancies between the evidence of Mr. Benavides
and Dr. Benitez-Laso concerning the nature, extent and duration of the
plaintiff’s injuries and symptoms, I prefer the evidence of the plaintiff’s
physician.  Dr. Benitez-Laso examined the plaintiff on various occasions
between January 4, 2012 and June 13, 2014 concerning his complaints of injuries
sustained in the bus accident, recorded Mr. Benavides’ complaints,
symptoms and progress on each visit, as well as his findings and diagnoses.

[38]       
Having regard to the passage of time and the plaintiff’s cognitive
difficulties, I do not accept his assertion that he recalls the accident “perfectly”.
However, I am satisfied, on the whole of the evidence, that at or about 12:30 p.m.
on January 1, 2012 the plaintiff fell on a number eight bus operated by the
defendant Translink when it came to an abrupt stop at or near the bus stop and
Fraser and 22nd Avenue.

[39]       
I also find that the plaintiff fell as a result of the driver braking
abruptly, and that before Mr. Benavides fell he was standing near the rear
door of the bus, holding on to the metal pole or stanchion with one hand and
waiting for the bus to make its regular stop at Fraser and 22nd Avenue.  I am
also satisfied that Mr. Benavides was injured when he fell on the bus, and
that his injuries included soft tissue injuries to his hands, knees, back and
neck.  I discuss the full extent of the plaintiff’s injuries later in these
reasons.

(b) Did the
defendant carrier breach the standard of care it owed to the plaintiff?

Applicable Legal Principles

[40]       
Once a plaintiff passenger establishes that he or she was injured while riding
on a public carrier, a prima facie case of negligence is made out. The
onus then shifts to the defendant carrier to establish that the passenger’s
injuries occurred without negligence on the part of the carrier.

[41]       
The applicable legal principles were succinctly stated by Madam Justice
Dardi in Prempeh v. Boisvert, 2012 BCSC 304 at paras. 15-20:

[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.

[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 (Q.L.)(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:

[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 A.B.C.A. 221, at ¶46,
leave to appeal to S.C.C. ref’d, [2000] S.C.C.A. No. 483 (S.C.C. Mar. 29,
2001).

[42]       
It is not, of itself, a breach of the standard
of care for a bus driver to stop abruptly, even where there is an indication
that special precautions may be warranted with respect to an elderly, frail or
physically compromised passenger: Erickson v. Sibble, 2012 BCSC 1880 at para. 57. 
As the court explained in Erickson, the issue of liability depends “not
only on the manner of the stop, but the reason for its suddenness, and the
assessment of whether, in all the circumstances, the impugned driving conduct
was substandard when measured against the standard expected of a reasonably
prudent driver.”

Application of Legal Principles

[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.

[44]       
I have accepted the evidence of both Mr. Benavides
and Ms. Di Giralomo that the bus braked suddenly and without warning when
it was at or past the stop at Fraser and 22nd Avenue. When the bus left the
previous stop, the plaintiff had rung the bell to let the driver know that he
wanted to get off at Fraser and 22nd Avenue.

[45]       
 There is no evidence that the driver braked
abruptly in order to avoid an unexpected hazard.  Nor is there any evidence
the driver braked suddenly for any reason other than to stop at or near the bus
stop at Fraser and 22nd Avenue. Contrary to Translink’s
training, the driver failed to decelerate smoothly as he approached the bus
stop.  On the evidence of both the plaintiff and Ms. Di Giralomo, the bus
was packed with passengers.  In those circumstances, a reasonable and prudent
bus driver would anticipate that there would be passengers standing at or near
the exit door.

[46]       
The defendants have not adduced any evidence to
show that the bus was being driven carefully at the time the plaintiff fell.

[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.

[48]       
A public carrier may be liable for the negligence of its drivers even
where, as here, the plaintiff is unable to identify the bus driver. In Kean
v. British Columbia Transit, 1998 CanLII 1817 (BCSC), the plaintiff was
injured when a privately owned bus hired by BC Transit as a replacement for its
own buses stopped suddenly. Because the plaintiff advised the driver at the
time of the accident that she was not hurt, the bus driver was never
identified.  The plaintiff claimed against BC Transit.  In Kean at para. 16,
Mr. Justice Cohen held:

Regarding the issue of the vicarious
liability, … I agree with plaintiff’s counsel that BC Transit is liable for the
actions of the driver and the owner of the bus that was placed on the route by
BC Transit to transport passengers from the bus stop in White Rock to the
Broadway stop in Vancouver. If the plaintiff was able to establish the actual
identity of the driver and the owner of the subject bus, then she would be able
to succeed at trial against them, as well as BC Transit. The fact that the
driver or the owner of the subject bus have not been identified does not, in my
view, remove BC Transit’s liability to the plaintiff.

[49]       
Here, Mr. McKenzie testified that Translink was the only carrier
operating buses along Fraser Street. Mr. Benavides said he was injured on
a number eight bus and Ms. Di Giralomo gave evidence that she and the
plaintiff were riding a Translink bus on the number eight route when the bus
stopped suddenly at or near the bus stop at 22nd and Fraser on January 1, 2012.
Mr. McKenzie confirmed that Translink operates the number eight bus route
and that the bus drivers are employees of Translink.

[50]       
I find that the plaintiff has established that he suffered injuries
caused by the negligence of the bus driver, and that Translink is vicariously
liable.  The defendant Translink breached the standard of care it owed to the
plaintiff.

[51]       
Because the bus driver was not identified, Mr. Benavides also named
the Insurance Corporation of British Columbia as a nominal defendant under
s. 24 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231.
Under s. 24(5), a judgment against every corporation must not be given
unless the court is satisfied that all reasonable efforts have been made by the
parties to ascertain the identity of the unknown driver, and the identity of
the driver is not ascertainable.  In light of my finding that Translink is vicariously
liable for the negligence of its driver, it is unnecessary to determine whether
the plaintiff made reasonable efforts to identify the driver. On that basis,
the plaintiff’s claim against the Corporation as a nominal defendant is
dismissed.

(c) Was
there negligence on the part of the plaintiff that caused or contributed to his
injuries?

[52]       
The defendants argue that the plaintiff was negligent and caused or
contributed to his own injuries by failing to take reasonable care for his own
safety, including, riding the bus while intoxicated.

[53]       
The test is whether Mr. Benavides failed to take reasonable care
for his own safety, and if so whether his failure was one of the causes of his
injuries: Bradley v. Bath, 2010 BCCA 10. A plaintiff who fails to
exercise the level of care for his own safety that is expected of an
objectively reasonable bus passenger in the circumstances, and thereby causes
or contributes to his own injuries will be found to be contributorily
negligent: Erickson, at para. 70.

[54]       
In Erickson, the 42-year-old plaintiff bus passenger was injured
when she slid off her seat and struck her hip when the defendant bus driver braked
abruptly. The court apportioned liability 75% to the defendants and 25% to the plaintiff,
who had chosen to sit away from a handrail in order to chat with her sister.
The plaintiff, who was aware of her vulnerable low back and the driver’s
prolonged erratic driving, failed to take reasonable precautions for her own
safety.  The court held that she ought to have chosen a seat where she could
hold on to a stanchion or handrail.

[55]       
In Prempeh, the plaintiff was standing in anticipation of
disembarking when she was thrown to the floor when the bus driver, without
warning, braked suddenly to avoid colliding with a car in front.  The driver
admitted he made a “hard stop”.  Had the driver observed the traffic ahead
carefully, he would have had time to decelerate without braking abruptly.  In Prempeh,
the defendants argued that if the plaintiff had been seated the accident would
have been avoided.  At paras. 33 and 34, the court accepted as a “critical
fact” the plaintiff’s evidence that at the time of the incident she was holding
the metal handle on the back of her seat.  The court found that the hard stop
that caused the plaintiff to fall was “not within the normal range of movement that
passengers reasonably ought to expect on buses”.  The court also observed that
passengers are expected to stand in a bus.  Accordingly, the plaintiff was not
at fault when she was thrown forward when the bus driver abruptly braked.

[56]       
Here, it was not unreasonable for Mr. Benavides to stand near the
exit in anticipation of the stop.  He was holding onto the metal pole which
Translink provided for the safety of passengers. I accept the plaintiff’s
submission that Mr. Benavides was entitled to expect that the bus driver
would decelerate smoothly before bringing the bus to a complete stop at the bus
stop.

[57]       
The defendants say the plaintiff smelled of alcohol and was probably
intoxicated at the time of the accident.  As I have previously noted, Ms. Di
Giralomo gave evidence that the plaintiff’s breath smelled of alcohol at the
time of the accident.  Dr. Benitez-Laso also testified that Mr. Benavides
often attended for his 7:30 a.m. appointments with the smell of alcohol on his breath.
I find that it is more probable than not that the plaintiff had consumed
alcohol either on New Year’s Eve, or during the morning of January 1, 2012.  Ms. Di
Giralomo also gave evidence that Mr. Benavides was not intoxicated at the
time of the accident and that he was walking normally when he left her home
shortly after the bus accident.  While I have found that the plaintiff consumed
alcohol at some point during the morning of January 1, 2012, the defendants
have not established, on the balance of probabilities, that at the time of the
accident the plaintiff was impaired or intoxicated, or that his consumption of
alcohol caused or contributed to his fall and the resulting injuries.

[58]       
I find that there was no conduct on the part of the plaintiff which
departed from the conduct expected of a reasonably prudent elderly bus
passenger that caused or contributed to his injuries.

DAMAGES

(d) What
injuries did the plaintiff suffer as a result of the bus accident?

Medical Evidence

[59]       
Dr. Benitez-Laso, the plaintiff’s general practitioner, provided an
expert report dated December 14, 2014. He examined Mr. Benavides on
January 4, 2012. Mr. Benavides reported that he had been injured at
approximately 12:30 p.m. on January 1, 2012 while travelling on bus number
eight when the driver stopped suddenly at the intersection of 23rd and Fraser
Street. The plaintiff told Dr. Benitez-Laso that he had been “catapulted
forward” and struck a metal pole, had injured his hand and had developed neck,
upper and lower back pain that became progressively worse during the 48 hours
following the accident. The plaintiff also reported exacerbation of pain to his
right knee and persistent dizziness. He claimed that his denture was broken
during the accident.

[60]       
Dr. Benitez-Laso noted that the plaintiff denied any head injuries
or loss of consciousness. On examination, Dr. Benitez-Laso found the plaintiff
to have a limited range of neck motion in all directions; that the plaintiff’s
shoulder muscles were spastic and painful on palpation; that the plaintiff
complained of prominent pain affecting the right side of his chest and rib cage;
and that the muscles of his thoracic and lumbar spine were painful on
palpation. While Mr. Benavides’ right knee was tender, his physician saw
no evidence of lacerations or bruises.

[61]       
Dr. Benitez-Laso diagnosed neck strain, thoracic and lumbar strain,
contusion to the plaintiff’s right chest and rib cage, bilateral hand
sprain/strain, and right knee contusion. He prescribed painkillers and referred
Mr. Benavides for physiotherapy, which the plaintiff found helpful.

[62]       
The plaintiff’s past medical history includes:

·      
June 2009  – complaint of ankle and knee pain treated with
prednisone;

·      
May 2010 – the plaintiff was the victim of an assault. He fell on
his back and injured his head and neck, with possible loss of consciousness and
head concussion.  Mr. Benavides developed dizziness, neck pain and occipital
headaches.  He was treated with analgesics.  X-rays of the affected areas
revealed no abnormalities other than minimal spondylosis affecting his cervical
spine;

·      
August – December 2010 – complaints of neck, upper and lower back
pain and bilateral hand pain.

·      
December 1, 2011 – reactivation of joint pain in his lower back,
right knee pain, right-sided neck pain and right shoulder pain, with no
reported recent traumas.

[63]       
Mr. Benavides saw Dr. Benitez-Laso again on January 12 and
February 6, 2012.  On January 12, 2012, he complained of frequent headache and
neck, back and right shoulder pain, sore hands, and no improvement to his right
knee pain.  On February 6, 2012, the plaintiff complained of right-sided facial
pain and headaches. Dr. Benitez-Laso thought he might be experiencing TMJ
related symptoms secondary to the bus accident. The plaintiff reported his neck
and upper back were improving, but there had been no improvement to his lower
back pain.

[64]       
On March 26, 2012, Dr. Benitez-Laso ordered an x-ray of the
plaintiff’s right knee which revealed mild osteoarthritis and a slight joint
space narrowing of the right knee.

[65]       
Through May and June 2012, the plaintiff continued to complain of pain
and stiffness in his knees, particularly the right knee.  An MRI scan performed
on September 8, 2012 revealed a mass or cyst on the right knee. Dr. Benitez-Laso
noted the findings from the MRI scan included the following:

The
clinical impression is that the patient has a mass in the prepatellar space is
most in keeping with a complicated prepatellar bursitis. There appears to be a
fibrosis or a calcified capsule surrounding it with some internal septations.
Radiologist recommended orthopedic consultation. Mild chronic MCL strain. Mild
degenerative changes. Tiny intra-substance ACL cyst.

[66]       
Dr. Benitez-Laso explained that the ACL and MCL are ligaments that
provide stability to the knee.

[67]       
Through 2013 and 2014, the plaintiff continued to complain of right knee
pain that limited his ability to walk and to climb stairs, as well as TMJ pain,
which he attributed to the bus accident.

[68]       
The plaintiff was assessed by Dr. Avina, a rheumatologist, on May
23, 2013. Dr. Avina opined that Mr. Benavides had developed a post-traumatic
cyst on his right knee and recommended a referral for orthopedic assessment and
possible surgery.  On December 12, 2013, Mr. Benavides was assessed by a
Dr. Brown, an orthopedic surgeon, who identified an apple-sized mass or
cyst on the plaintiff’s right knee.  Dr. Brown cautioned
Dr. Benitez-Laso that if the cyst were removed, there was some risk that
the lesion might come back. Shortly before trial, the plaintiff underwent
surgery for the removal of his right knee cyst.

[69]       
In Dr. Benitez-Laso’s opinion, Mr. Benavides suffered neck
strain as a result of the bus accident, which had resolved by May 2012. He did
not believe the bus accident would cause any acceleration of the pre-existing
degenerative changes of the plaintiff’s neck.

[70]       
Similarly, the plaintiff’s physician concluded that Mr. Benavides’
thoracic and lumbar strain, which were treated with analgesics, muscle
relaxants and physiotherapy, had substantially resolved by May 2012. He thought
it probable that the plaintiff has degenerative disc disease affecting his
thoracic and lumbar spine that was temporarily irritated by the trauma
sustained in the bus accident of January 1, 2012.  In Dr. Benitez-Laso’s
opinion, the plaintiff’s prognosis for recovery from the low and mid back pain
attributable to the bus accident was excellent.

[71]       
Dr. Benitez-Laso reported that the trauma to the plaintiff’s right
chest and his rib cage had also resolved by May 2012, after which Mr. Benavides
made no further complaint of discomfort affecting those areas.

[72]       
The plaintiff’s physician thought the injuries to Mr. Benavides’
hands were minor and had resolved within a few months of the accident.

[73]       
With respect to the plaintiff’s complaints of right-side headaches and
TMJ pain, Dr. Benitez-Laso noted that a CT scan of the TMJ region
performed on June 28, 2012 revealed mild loss of joint space within the TMJ
bilaterally, and evidence of previous degenerative changes affecting the TMJ.  He
reported that it was difficult to make a causal relationship between the
plaintiff’s present symptoms versus pre-existing changes to the TMJ.  However, Dr. Benitez-Laso
noted that the most significant findings from the CT scan were located on the
right side, which was the site of the plaintiff’s physical symptoms.  In
cross-examination, he testified that the CT findings were consistent with the
plaintiff experiencing some pain as a result of the bus accident.

[74]       
Dr. Benitez-Laso also gave evidence in cross-examination that when
he examined plaintiff on January 4, 2012, he did not notice any swelling or
bruising to Mr. Benavides’s face. Dr. Benitez-Laso recalled the plaintiff
saying that he hit a pole but did not mention striking the right side of his
face, or swelling to the right side of his face.

[75]       
Dr. Benitez-Laso also noted that the plaintiff underwent multiple
dental extractions to alleviate the pain in his right jaw region, without
success.  Based on the plaintiff’s report that his denture was broken in the
bus accident, Dr. Benitez-Laso believed that the dental extractions were
related to that incident.

[76]       
Mr. Benavides continued to complain of discomfort affecting the
right side of his jaw and face through 2013 and into 2014.  In Dr. Benavides’
opinion, the plaintiff’s TMJ problem requires the expertise of a dental
specialist.

[77]       
Regarding the plaintiff’s knee injuries, Dr. Benitez-Laso concluded
that the plaintiff suffered contusions to both knees, which exacerbated his
pre-existing knee pain, and affected the right knee more than the left.  Mr. Benavides
reported an increase in knee pain when he engaged in load-bearing activities,
such as walking or climbing stairs.  Dr. Benitez-Laso thought the cyst or lesion
to the plaintiff’s right knee was directly linked to trauma sustained in the
bus accident of January 1, 2012.

[78]       
At the request of the defendants, the plaintiff also underwent an
independent medical examination performed by Dr. William Yu, an orthopedic
surgeon.  Dr. Yu examined the plaintiff on October 8, 2014.  In his medical
report of October 9, 2014, Dr. Yu offered the following opinion:

This 76-year old gentleman
fell while a passenger on a bus on January 1, 2012. He is a poor historian
likely due to pre-existing dementia with poor memory possibly complicated by
language difficulties. He was accompanied by a friend and later an interpreter.
I believe as a result of the fall he sustained:

·      
dental injuries. He reported
dental extractions. There does not appear to be an immediate record of dental
injury. Dr. Walters indicated Mr. Benavides was in the office
predating the accident for upper and lower denture adjustment, for relief of
pain. Dr. Ng indicated that on October 16, 2013 he had extraction of three
teeth. It is uncertain as to whether the extractions were due to the fall on
January 1, 2012. This would best be addressed by a dentist.

·      
he probably sustained soft tissue
injuries involving his neck, low back and right shoulder. There are no
neurological symptoms or signs. On review of his family physician’s records in
December, 2011 he had low back pain and stiffness, sudden neck stiffness and
tingling sensation involving the right shoulder. He was given Flexeril and
Tylenol #3. It is probable he did have some pre-existing neck, back and
shoulder pain prior to the accident.

·      
injury to his knees especially the
right knee. Dr. Benitez indicated there was a hematoma at the front of his
right knee when he was seen on January 4, 2012. It is probable he sustained a
direct blunt trauma to the front of his right knee resulting in a hematoma and
prepatellar bursitis; this has increased to about 10 cm in diameter. He also
has clinical features of osteoarthritis of his knees. He had pre-existing right
knee pain documented in December, 2011. It is probable he had degenerative
arthritis of his knees and the blunt trauma to the kneecap might possibly have
aggravated the pre-existing patellofemoral arthritis.

He has dementia and saw Dr. Thiessen,
neurologist, predating the accident. I do not believe the injury had any impact
on his dementia.

The
most objective finding was a large prepatellar bursa which is probably due to
the fall. I understand he will be seeing an orthopaedic surgeon for
consideration of surgical excision of the bursa. His mobility will probably not
be affected if the bursa is treated non- operatively or operatively. Surgery
could be done on a day care basis if he is considered medically fit and
probably would involve a procedure lasting about ½ hour.

[79]       
Recovery would probably take several weeks.

Findings of Fact: The plaintiff’s injuries

[80]       
Based on the opinions of Drs. Benitez-Laso and Yu, I find that in the
accident the plaintiff suffered soft tissue injuries to his neck and lower and
upper back, including his right shoulder. Those injuries exacerbated the
plaintiff’s pre-existing neck, back and shoulder pain.  I accept the evidence
of Dr. Benitez-Laso that the plaintiff’s neck, lower and upper back pain
had substantially resolved within five months of the accident, by May 2012. As
the plaintiff’s physician reported, the plaintiff’s pre-existing degenerative
disc disease affecting his thoracic and lumbar spine was aggravated by the
trauma of the bus accident, but settled within five months.

[81]       
The plaintiff also suffered contusions to the right side of his chest
and rib cage resulting in pain and discomfort that resolved by May 2012.

[82]       
I find that Mr. Benavides suffered a minor strain or sprain to both
hands when he fell on the bus, which fully resolved within a few months of the
accident.

[83]       
Mr. Benavides also suffered contusions to both knees when he fell
on the bus. Those injuries exacerbated his pre-existing painful knee symptoms,
particularly in the right knee.

[84]       
Dr. Benitez-Laso reported that the plaintiff developed a large mass
or cyst on his right knee, which he diagnosed as post-traumatic prepatellar
bursitis attributable to the bus accident.  Dr. Yu agreed that the
plaintiff’s large cyst or prepatellar bursa was probably due to his fall on the
bus. The knee injuries the plaintiff suffered in the fall exacerbated the pain
and discomfort he experienced as result of his pre-existing osteoarthritis. The
plaintiff’s right knee injury was the most significant injury he sustained. His
right knee required surgical intervention for the removal of the cyst and
continued to cause him pain and to limit his mobility to the time of trial.

[85]       
I turn next to the plaintiff’s complaints of swelling to the right side
of his head, TMJ and dental injuries. Dr. Benitez-Laso made no note of the
plaintiff reporting a swollen face or head on January 4, 2012.  He recorded no
observation of swelling to the plaintiff’s face or head when he when he first
assessed Mr. Benavides’ injuries on January 4, 2012.  Dr. Yu noted
there was no immediate or clinical record of dental injuries.  Dr. Yu also
observed that before the bus accident, the plaintiff attended a dentist, Dr. Walter,
for adjustments to his upper and lower dentures for the relief of pain. Dr. Benitez-Laso
reported that the CT scan performed on June 28, 2012 showed pre-existing
changes in the TMJ area. The plaintiff’s physician found it difficult to make a
causal connection between the plaintiff’s ongoing complaints of TMJ pain and the
accident. Dr. Yu advised that it was uncertain whether the plaintiff’s
dental extractions were due to his fall on the bus.  He thought that issue would
best be addressed by a dentist. Neither party has filed an opinion from a
dental specialist on whether the plaintiff’s TMJ problems and dental extractions
are related to the bus accident. Taking all of these factors into
consideration, I find that the plaintiff has not established on the balance of
probabilities that he suffered swelling to the right side of the face, TMJ
injuries or dental extractions as a result of the defendant’s negligence.

[86]       
I also find that the injuries sustained by the plaintiff in the bus
accident had no impact on his pre-existing cognitive impairment.

Causation

[87]       
The basic test for determining causation is the "but for"
test.  The plaintiff bears the burden of establishing that "but for"
the negligent act or omission of the defendant, the injury would not have
occurred: Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333 at paras. 21.

[88]       
As the Court observed in Resurfice at para. 23:

The “but for” test recognizes
that compensation for negligent conduct should only be made “where a
substantial connection between the injury and the defendant’s conduct” is
present.  It ensures that a defendant will not be held liable for the
plaintiff’s injuries where they “may very well be due to factors unconnected to
the defendant and not the fault of anyone”: Snell v. Farrell, at
p. 327, per Sopinka J.

[89]       
The "but for" test must be proved on a balance of
probabilities, rather than with scientific precision: Athey v. Leonati,
[1996] 3 S.C.R. 458, at paras. 13, 16.

[90]       
It is not necessary for the plaintiff to establish that the defendant’s
negligence is the sole cause of the injury.  As long as the defendant is part
of the cause of the injury, the defendant is liable, even if his or her act
alone was not enough to create the injury: Athey v. Leonati, at para. 17.

[91]       
Causation must be established on a balance of probabilities before damages
are assessed: Blackwater v. Plint, 2005 SCC 58 at para. 78.

[92]       
The evidence of Drs. Benitez-Laso and Yu was that the plaintiff
sustained soft tissue injuries to his neck, lower and upper back in the bus
accident that aggravated pre-existing pain. I find that but for the bus
accident, Mr. Benavides would not have suffered the five-month
exacerbation of neck, lower and upper back pain he suffered between January and
May 2012. Similarly, but for the defendant’s negligence, the plaintiff would
not have experienced the strain or sprain to his hands which he suffered as a
result of falling to the floor of the bus. I make the same finding with respect
to the pain and discomfort Mr. Benavides experienced on the right side of
his chest and rib cage from the time of the accident through May 2012.

[93]       
The medical experts agree that the blunt trauma to the plaintiff’s knee
resulting from his fall aggravated his pre-existing arthritis and exacerbated
his pain in both knees. Drs. Benitez-Laso and Yu also were of the opinion that
the large cyst on the plaintiff’s right knee was probably due to the fall. I
find that but for the defendant’s negligence, the plaintiff would not have
suffered the significant exacerbation of his knee pain, the development of the
large cyst on his right knee or the persistent right knee pain and discomfort
that continued to the time of trial.

ASSESSMENT OF DAMAGES

(e) What
amounts, if any, are payable to the plaintiff for non-pecuniary loss, costs of
future care and special damages?

Non-Pecuniary Damages

The Law

[94]       
Non-pecuniary damages are awarded to compensate the plaintiff for pain,
suffering, loss of enjoyment of life, and loss of amenities.  Compensation
awarded should be fair to all parties, and fairness is measured against awards
made in comparable cases.  Such cases, though helpful, serve only as a rough
guide.  Each case depends on its own unique facts: Trites v. Penner,
2010 BCSC 882 at paras. 188-189.

[95]       
In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, the Court
identified a non-exhaustive list of the factors to be considered when assessing
non-pecuniary damages.  They include the age of the plaintiff; the nature of
the injuries; severity and duration of the pain; disability; emotional
suffering; loss or impairment of life; impairment of family, marital and social
relationships; impairment of physical and mental abilities; and loss of
lifestyle.

[96]       
The assessment of non-pecuniary damages is also influenced by each
plaintiff’s personal experiences in dealing with her injuries and their
consequences, and the plaintiff’s ability to articulate that experience: Dilello
v. Montgomery, 2005 BCCA 56 at para. 25.

[97]       
The plaintiff is 76 years old.

[98]       
I have found that Mr. Benavides suffered soft tissue injuries to
his neck, lower and upper back, chest and hands as a result of the bus accident
and that the pain and discomfort attributable to those injuries had resolved
within five months of the accident. The plaintiff also suffered trauma to his
knees that exacerbated previously painful knee symptoms and led to the development
of a large cyst in his right knee. The plaintiff’s significant right knee pain
continued to trouble him to the time of trial and limited his mobility. At the
time of trial, Mr. Benavides was still recovering from his right knee
surgery. There is a risk that his lesion may recur and that he may require
further knee surgery. I accept Dr. Benitez-Laso’s opinion that the prognosis
for the plaintiff’s right knee is uncertain.

[99]       
The plaintiff lives alone, does not have a driver’s license, and relies
on public transit for transportation. Before the accident, the plaintiff was
able to travel by public transit to shop and to visit friends. He exercised in
a gym using light weights and a stationary bicycle two or three times per week.
As a result of the injury to his right knee in the bus accident, his mobility
was limited up to the time of trial. The plaintiff has difficulty climbing the
stairs to his second storey apartment and restricts his shopping to stores where
there is access by elevator. He gets tired walking and finds it difficult to
carry bags.  The limitations on his mobility have reduced his contact with
friends . At the time of trial, following his knee surgery, he was using a
cane, which he had not done before the bus accident.

[100]      In light
of the uncertain prognosis for his right knee, the plaintiff may continue to
experience limitations on his mobility.

[101]     I also
bear in mind the plaintiff’s original, or pre-accident condition. Mr. Benavides
had a history of neck pain since May 2010. The fall on the bus exacerbated
previously painful symptoms related to his arthritic knees. Before the accident
he also suffered from bouts of lower and upper back pain. On December 1, 2011, Dr. Benitez-Laso
recorded the re-activation of joint pains involving the plaintiff’s lower back,
right knee pain, right sided neck pain and right shoulder. The plaintiff was
not pain-free before the bus accident. The injuries he suffered as a result of
the defendant’s negligence were superimposed upon and aggravated his
pre-existing pain and discomfort. His level of functioning had already been
compromised to some degree by his pre-existing knee pain and recurrent bouts of
neck and back pain. For example, in September 2010 the plaintiff reported to
Dr. Benitez-Laso that his lower back pain and stiffness prevented him from
tying his own shoes. Nonetheless, I find that Mr. Benavides has suffered
some impairment of his mobility and some restriction on his physical activities
and social life as a result of the injuries he suffered in the bus accident.

[102]     In support
of his claim for an award of non-pecuniary damages in the range of $50,000 to
$75,000, the plaintiff relies upon Dulay v. Lachange, 2012 BCSC 258 and Chow
v. Schuler, 2014 BCSC 309.  In Dulay, the injuries sustained by the
57-year-old plaintiff in a motor vehicle accident included back pain, dizziness
and chest pain that all resolved within six to 12 months.  At the time of
trial, more than four years after the accident, he continued to suffer from
chronic knee pain.  The court found that the plaintiff had suffered a contusion
to his right knee which triggered the onset of painful, but previously
asymptomatic osteoarthritis.  The court found that as a result of the accident
the plaintiff was no longer able to enjoy all the activities he did with his
family and for his temple.  In Dulay at para. 123, the court,
applying Fata v. Heinonen, 2010 BCSC 385 and the “golden years
doctrine”, noted that injury to a person nearing retirement is frequently more
difficult to endure, and found that the plaintiff who was nearing retirement,
had lost the ability to function in a way that had altered how he lived.  In
the result, the court awarded non-pecuniary damages of $75,000.

[103]     I note
that the plaintiff in Dulay was almost 20 years younger than Mr. Benavides,
that his injuries significantly restricted his family, social and religious
activities, and that Mr. Dulay did not suffer from painful pre-existing
conditions at the time of his injury.

[104]     In Chow,
the 78-year-old plaintiff pedestrian was struck by the defendant’s vehicle,
suffered a knee injury and later developed “cross-over toe” on her right foot,
which caused ongoing pain, limited her mobility and eventually required
surgery. She was unable to return to all of her pre-accident activities. By the
time of trial, the plaintiff only experienced pain in her knee if she walked
too long or too fast, or otherwise put pressure on her leg.  After the
accident, the plaintiff also suffered from nightmares and developed a fear of
crossing the road, for which she was successfully treated by psychological
counselling. The court assessed non-pecuniary damages in the amount of $50,000.

[105]     The
defendants referred to Visona v. Stewart, 2013 BCSC 2006, Bideci v.
Neuhold, 2014 BCSC 542, Bains v. Park, 2014 BCSC 1818 and Brown
v. Raffan, 2013 BCSC 114 in support of their position that an appropriate
award for non-pecuniary damages in the circumstances of this case would be
$30,000.  In Visona, the 42-year-old plaintiff sustained soft tissue
injuries to her neck, back and left hip and bruising to the side of her left
knee.  The court found that all of the plaintiff’s injuries had resolved within
two years of the accident and awarded the plaintiff $30,000.  Here, Mr. Benavides
suffered a significant injury to his right knee which not only exacerbated his
pre-existing knee pain, but continued to cause pain and discomfort to the time
of trial, required surgical intervention and may require further surgery in the
future.

[106]     In Bideci,
the 93-year-old plaintiff fell while he was standing up from his seat on a bus. 
The plaintiff’s pre-existing medical condition included severe osteoporosis and
osteoarthritis, neck and back pain due to a previous motor vehicle accident,
and bilateral shoulder pain.  The plaintiff complained of bilateral shoulder
pain, abrasions to his left elbow and hand and a bump on the left side of his
head as a result of the bus accident.  The court found that the plaintiff’s
level of functioning had not been significantly affected by the accident, and
also took into account Mr. Bideci’s age in awarding non-pecuniary damages
of $35,000.

[107]     In Brown
v. Raffan, the plaintiff suffered significant soft tissue injuries to her
face, spine, right shoulder and both knees in a motor vehicle accident.  The
court found that the blow to her face in the accident broke her dental plate,
resulting in upper teeth pain.  In Brown, the court concluded that the
accident injuries caused the plaintiff to continue to suffer significant
consequences for about two years and assessed non-pecuniary damages in the
amount of $35,000.

[108]     Taking
into account Mr. Benavides’ particular circumstances, all of the Stapley
factors, including the plaintiff’s age, his pre-existing symptomatic
arthritis and degenerative disc condition, the nature of the plaintiff’s
injuries and their impact on his mobility and activities, and all of the
authorities cited by counsel, I assess the plaintiff’s damages for pain and
suffering and loss of amenities and enjoyment of life in the amount of $40,000.

Cost of Future Care

[109]     Claims for
cost of future care must be medically justified and reasonable.  The award of
damages must be moderate and fair to both parties: Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 (S.C.) at para. 210.

[110]     In Krangle
(Guardian ad litem of) v. Brisco, 2002 SCC 9 at paras. 21-22 McLachlin
C.J. stated:

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.

[111]     The
plaintiff seeks an award of $1,000 to $2,000 for future care costs. Mr. Benavides
claims for the costs of future care for dental injuries and for costs he is
likely to incur in relation to his right knee surgery.

[112]     Dr. Benitez-Laso
thought the plaintiff would benefit from consultation with a dental specialist
for his ongoing complaints of TMJ discomfort. He advised this consultation is
not covered by the Medical Services Plan and typically costs $1,200 per
appointment, without taking into account the cost of any surgery or dental
appliances.

[113]     Because I have
found the plaintiff has failed to establish that his ongoing TMJ and dental
problems were caused by the bus accident, the costs of future dental care are
not the responsibility of the defendants.  Accordingly, I make no award for the
cost of a specialist dental consultation.

[114]     With
respect to the cost of future care for the plaintiff’s right knee, Mr. Benavides
had undergone surgery shortly before trial. I accept the plaintiff’s submission
that his recovery would likely require him to pay out-of-pocket expenses for
some additional medication. Further, Dr. Benitez-Laso opined that it is
quite probable that the cyst or lesion may reoccur following surgery, and that
there is the potential for a second or even a third surgical procedure.  In
that event, which I accept is a real possibility; Mr. Benavides would likely
incur out-of-pocket expenses for pain medication and for transportation while
he lacks the mobility to use the bus. I find that an award of $500 for costs of
future care related to surgery to the plaintiff’s right knee is reasonable and
fair to both parties.

Special Damages

[115]     The
plaintiff is entitled to recover reasonable out-of-pocket expenses incurred as
a result of the accident in order to restore him to the position he would have
been in had the accident not occurred: X. v. Y., 2011 BCSC 944 at para. 281;
Milina v. Bartsch at para. 170.

[116]     Mr. Benavides
claims special damages totalling $961.71.  That amount includes 19
physiotherapy sessions at $25 per session between January 25 and March 29,
2012; $26.71 for prescription pain killers and anti-inflammatories; and $440
for new eye glasses. The costs for physiotherapy and medications are reasonable
and were incurred as a result of the bus accident.  The plaintiff has not met
the burden of establishing on the balance of probabilities that he lost or
damaged his eye glasses in the accident.  Mr. Benavides had an eye test
and purchased his new glasses on April 19, 2012, some three and a half months
after the bus accident. There is no evidence that he complained to either Ms. Di
Giralomo or Dr. Benitez-Laso about losing or damaging his glasses on the
bus.  Accordingly, I reduce the claim by $440, and award special damages in the
amount of $521.71.

CONCLUSION

[117]     To
conclude, damages are awarded as follows:

Costs

[118]    
Unless there are matters that counsel wish to bring to the Court’s
attention, the plaintiff is entitled to costs of the action at Scale B,
together with his reasonable disbursements.  If necessary, counsel are at liberty
to make written submissions in respect of costs.

“PEARLMAN
J.”