Ding v Prévost, A Division of Volvo Group Canada Inc

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Ding v. Prévost, A Division of Volvo Group

Canada Inc.,

2022 BCSC 215

Date: 20220210

Docket: M166513

Registry: Vancouver

Between:

And

Jie Ding

Plaintiff

Brian Spittal, Western Bus Lines Ltd., Canam Super Vacation Inc. d.b.a. Super

Vacation, Prévost, A Division of Volvo Group Canada Inc., Mark Yu, Universal

Coach Line Ltd., Laurels Tak Lau and Paul Tao Way Chan

Defendants

- and -

Docket: M166164

Registry: Vancouver

Between:

Hua Li Pan

Plaintiff

And

Brian Spittal, Western Bus Lines Ltd., Canam Super Vacation Inc. d.b.a. Super

Vacation, Prevost, A Division of Volvo Group Canada Inc., Laurels Lau, Paul

Tao Way Chan, Universal Coach Line Ltd. And Tat Chi Yu a.k.a. Mark Ewan and

Mark Yu

Defendants

Corrected Judgment: The text of the judgment was corrected at paragraphs 23, 37,

42, 45, 87, 88, 165, 213(a), 214 and 374 on February 28, 2022.

Before: The Honourable Justice E.M. Myers

Reasons for Judgment

Ding v. Prévost, A Division of Volvo Group Canada Inc.

Page 2

Counsel for the Plaintiff, Jie Ding:

Michael Slater, Q.C.

James Buckley

Vivian Cheung

Counsel for the Plaintiff, Hua Li Pan:

Sean Pihl, Q.C.

Whitney Derber

Robert Marcoux

Counsel for the Defendant, Prévost, A

Division of Volvo Group Canada Inc.:

Guy Brown, Q.C.

Nigel Trevethan

Siobhan Sams

Counsel for the Defendants, Brian Spittal

and Western Bus Lines Ltd.:

Danine Griffin

Elizabeth Clarke

Counsel for the Defendant, Universal Coach

Line Ltd.

Harley Harris

Tom Dusevic

Kinda Garcha

Heather Maconachie

Brian Cheng

Laura Buitendyk

Counsel for the Defendants, Canam Super

Vacation Inc., d.b.a. Super Vacation,

Laurels Tak Lau a.k.a. Laurels Lau and Paul

Tao Way Chan:

Todd Davies

Justin McGregor

Counsel for the Defendant, Mark Yu a.k.a.

Tat Chi Yu, Mark Ewan and Mark You:

Stephen Berezowskyj

Daniel Babcock

Place and Date of Trial:

Vancouver, B.C.

March 22-26, 29-31,

April 1, 6-9, 12-16, 19-20, 22-23,

26, 28-30,

May 3-7, 10-14, 17-21, 25-28, 31,

June 1-4, 7-11, 14-18, 21-25,

November 22-26, 29-30,

December 1-3, 2021

Place and Date of Judgment:

Vancouver, B.C.

February 10, 2022

Ding v. Prévost, A Division of Volvo Group Canada Inc.

Page 3

Table of Contents

Paragraph

I. INTRODUCTION

[1]

II. LIABILITY OF PRÉVOST

A. Background Facts

[22]

[24]

[31]

[34]

[49]

1. Regulation of motor vehicle safety standards

2. Prévost and the motor coach industry

3. The H3-45 Bus Model

B. Was Prévost negligent in manufacturing the H3-45 coach

without seatbelts in 1998?

1. Industry and government consideration of seatbelts in

motor coaches

[54]

2. Why Prevost did not install seatbelts until 2009 and the

decision to change to seatbelts

[114]

3. Plaintiffs’ expert evidence regarding seatbelts

a) Gregory Sypher

[132]

[134]

[146]

[155]

[161]

[169]

[179]

[182]

[188]

[192]

[199]

[205]

[229]

b) William Vigilante

c) Andrew Rentschler

d) Gary Whitman

e) James Hall

f) Amrit Toor

g) Gregory Cole

4. Prévost’s experts dealing with seatbelts

a) Gray Beauchamp

b) Darrin Richards

c) William Gardner

5. Analysis: seat belt issue

C. Was Prévost negligent in not recalling the coach when the

retrofit was available?

D. Was Prévost negligent in using tempered glass instead of

laminate glass in the passenger windows?

[247]

1. Background facts

2. The plaintiffs’ expert witnesses

a) Gregory Sypher

b) Dr. Toor

[247]

[251]

[254]

[259]

[264]

c) Dr. Rentschler

d) Mr. Whitman

e) Donald Phillips

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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3. Prévost’s experts

a) Jack Ridenour

[278]

[296]

[300]

[304]

b) Mr. Richards

4. Analysis: glass issue

III. LIABILITY OF UNIVERSAL AND CANAM FOR

NEGLIGENT SUB-CONTRACTING

A. Lack of seatbelts

[307]

[311]

B. Failure of Universal and CanAm to investigate training and

safety planning at Western

1. Did Universal’s duty of care to the plaintiffs require it to

investigate Western’s training and safety procedures?

[314]

2. Was the accident caused by fatigue?

a) Mr. Spittal

[332]

[333]

[340]

[346]

[362]

[375]

b) The tour before the accident

c) The accident

d) Analysis: cause of the accident

3. Assuming the accident was caused by fatigue, would a

training programme at Western or a fuller inquiry by

Universal of Western have avoided the accident?

IV. FAILURE TO WARN

V. LIABILITY OF MR. YU

VI. CONCLUSION

[385]

[405]

[406]

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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I.

INTRODUCTION

This action involves the crash of a tour bus on the Coquihalla Highway on

[1]

August 28, 2014. Fifty-five passengers were on board. The driver and the company

operating the bus have admitted liability. This trial concerns the liability of other

defendants: the bus manufacturer, the tour operator, another bus company who sub-

contracted the bus charter, and the tour guide.

[2]

The bus was travelling south, returning to Vancouver from a four-day Rocky

Mountain tour. South of Merritt, it rolled onto its left side, slid across the road and

was forced back into the upright position after the left wheels furrowed into the

ground on the opposite side of the road. No other vehicle was involved. The road

was clear and the sky was bright. I describe the accident more fully below at para.

346.

[3]

The bus was not equipped with seatbelts and some passengers were ejected

through the side windows. Fortunately, no one was killed, but all occupants say they

were injured to varying extents.

[4]

Each passenger commenced their own action. Separate trials of 55 actions

would have been unmanageable and duplicative. Similarly, a trial of all 55 claims at

the same time would have been equally unmanageable. Therefore, during the case

management process it was agreed—and I ordered—that two claims proceed to trial

to act as “bellwether” cases. Ms. Ding and Ms. Pan’s cases were selected, one

being representative of passengers who had been ejected from the bus (Ms. Ding)

and the other (Ms. Pan) being representative of passengers who remained in the

bus. Only liability is to be determined.

[5]

I will briefly describe the roles of the defendants and the basis of the claims

made against them.

[6]

Western Bus Lines Ltd. owned the bus. Mr. Spittal was the driver and an

employee of Western.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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[7]

Canam Super Vacation Inc. organised the tour. The passengers either

booked the tour directly with Canam or indirectly through a travel agent.

[8]

Laurels Lau and Paul Chan are the directors of CanAm. The plaintiffs

discontinued the claim against them during the final argument.

[9]

Mark Yu was the tour guide and worked for Canam.¹

[10] CanAm contracted with Universal Coach Line Ltd. for the provision of a bus

and driver for the tour. However, Universal did not have an available bus so it sub-

contracted the job to Western. The industry term for that is a “farm-out”.

[11] The basis of the claim against Mr. Spittal is negligent operation of the bus. In

particular, it is alleged that he fell asleep. He has admitted liability on the basis that

the accident was caused by a momentary lapse in attention. He denies that he fell

asleep. Western also admits liability on the basis that it was vicariously responsible

for the negligence of Mr. Spittal. It does so on the basis that the accident was

caused by inattention and not by fatigue. The fatigue allegation is important to the

plaintiffs because it is the “hook” to establish liability of the defendants other than

Western and Prévost.

[12]

With respect to Universal and Canam, the plaintiffs say they were negligent

because they did not exercise proper care in selecting Western. This is so, they say,

because the bus did not have seatbelts and also because Western had no training

programme in place which would allow driver fatigue to be identified. Initially, the

plaintiffs also claimed that Universal and CanAm were responsible for the

negligence of Western on the basis of vicarious liability, agency, and non-delegable

duty. However, that aspect of the claim was dropped during argument.

1 During the course of the final argument, the plaintiffs and Mr. Yu entered into a BC Ferries type settlement agreement and CanAm accepted liability for

any negligence of Mr. Yu. A BC Ferries agreement gives one or more defendants an opportunity to settle a multi-party proceeding on the plaintiff’s

agreement to forego recovery of any portion of the loss ultimately attributable to the settling parties from the non-settling defendants: British Columbia Ferry

Corp. v. T & N, (1995), 16 B.C.L.R. (3d) 115 (C.A.). Because of the BC Ferries order, I must still determine the liability of Mr. Yu and his apportionment of

responsibility, if any.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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[13] The plaintiffs allege that Mr. Yu was negligent because he should have

recognised signs of fatigue in Mr. Spittal.

[14]

This brings me to Prévost. The bus was manufactured in 1998 by Prévost

Car Inc. in Québec. In 1995, Volvo Group Canada Inc. purchased Prévost and later

turned it into a division. The plaintiffs claim that the bus was negligently designed

because it did not have seatbelts and used tempered glass for the passenger

windows instead of laminated glass. The plaintiffs do not claim that the accident was

caused by a defect in the bus, whether one of manufacture or design; rather, the

plaintiffs’ case is that their injuries were made worse by the lack of seatbelts and the

use of tempered glass.

[15] The liability of Prévost does not depend on a determination as to what caused

the accident. That is not the case for Universal, CanAm, or Mr. Yu; the case against

them depends on the accident having been caused by fatigue. However, the issue of

whether the bus should have had seatbelts is common to both the claims against

Prévost and the other defendants. I will therefore deal with the claim against Prévost

first.

[16] I will then deal with the liability of the other defendants, considering the

seatbelt and fatigue issues separately. That said, because this is a long judgment

with overlapping issues, there will be some repetition for the sake of clarity.

[17] Because it may be counter-intuitive, I mention at the outset that the

advisability of seatbelts in motor coaches was not a simple issue. It was not a matter

of “seatbelts good; no seatbelts bad”. The technology for seatbelts in cars is not

directly transposable to coaches. Coaches perform differently from cars and have

different safety considerations. There was a concern as to whether coach

passengers would use seatbelts; if they did not, they could be more severely injured

by the hardened seats that seatbelt installations would require.

[18] The advisability of seatbelts in motor coaches was one of ongoing

investigation within the industry and the regulators in Canada and the United States.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

Page 8

In this regard, this case is unique: counsel have found no other product liability case

where there has been this level of interplay between the industry and the regulators

with respect to developing safety standards.

[19] A requirement for seatbelts for newly manufactured motor coaches did not

come into force in Canada until September 2020.

[20] Ms. Pan and Ms. Ding were represented by separate counsel. Ms. Ding’s

counsel primarily argued the case against Prévost, while Ms. Pan’s counsel primarily

argued the case against the other defendants. However, they adopted each other’s

arguments, and I will largely refer to the plaintiffs collectively.

[21] Finally, three points of terminology:

 The type of accident here is known as a rollover accident. To be more

precise, it was a one-quarter rollover.

 Three-point belts, three-point restraints, and lap-shoulder belts are

synonymous.

 The terms inter-city coach and motor coach are—at least in this judgment—

synonymous. Although there is no standard definition of a motor coach, they

are larger buses suitable for long trips on the highway. A report prepared for

the B.C. Ministry of Transport on motor coach safety in 2016 defined a motor

coach for the purposes of the study as “including larger buses commonly

identified as Over-The-Road-Buses with an elevated seating area over the

luggage storage which typically seat over 30 passengers.” Coaches are not

mini-buses, nor are they city transit buses. The bus involved in this case is

shown in the photo below.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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II.

LIABILITY OF PRÉVOST

[22] As I stated in the introduction, the allegation against Prévost is that it was

negligent in not installing seatbelts and in using tempered glass instead of laminated

glass for the passenger windows. The claim is for negligent design and not for a

manufacturing defect.

[23] The regulatory and industry context was a major factor in the evidence and

arguments, especially for the seatbelt issue. To put the matter in some perspective,

Canada did not require seatbelts in newly manufactured buses until September 1

2020 (having promulgated the regulation in 2018). The United States made seatbelts

for motor coaches mandatory effective 2016, with no retro-fit requirement. When

Prévost manufactured the bus 1998, no other jurisdiction required seatbelts except

for Australia. The European Community had passed legislation requiring seatbelts,

but only to take effect in 1999.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

A. Background Facts

1. Regulation of motor vehicle safety standards

Page 10

[24] The motor transport industry is a heavily regulated one. I will describe here

the regulatory environment concerning the safety of vehicles. Later (at para. 315), I

deal with the regulation of the operation of coaches.

[25] Motor vehicle safety and design requirements are regulated under the Motor

Vehicle Safety Act, S.C. 1993, c. 16 and the Motor Vehicle Safety Regulations,

C.R.C., c. 1038, referred to in the industry as the “Canada Motor Vehicle Safety

Standards”. They set out the standards against which a vehicle manufacturer is

required to test its product. The Act and Regulations are administered by Transport

Canada.

[26] Canada is responsible for the safe movement of interprovincial buses, but it

has largely delegated this to the provinces in view of their enforcement and licensing

responsibilities. For example, the Act and Regulations govern the requirements for

the installation of seatbelts in a vehicle. Responsibility for legislating and enforcing a

requirement that seat belts be worn falls to the provinces and territories. Section

220(4) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 requires a passenger in a

vehicle to wear a belt if the vehicle has them.

[27] Serious motor coach crashes are documented by Transport Canada

investigators.

[28] In its 1998 report Review of Bus Safety Issues – Abstract & Index, Transport

Canada summarized its approach to bus safety:

(a)

Transport Canada develops and enforces Canada Motor Vehicle

Safety Standards for new buses under the Motor Vehicle Safety Act;

(b) through the Canadian Council of Motor Transport Administrators,

Transport Canada supports development and enforcement of the national

safety code for motor carriers;

(c)

Transport Canada reports on motor carrier safety under the federal

Motor Vehicle Transport Act;

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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(d) Transport Canada defect investigators identify safety defects and take

steps with manufacturers to correct defects through the Motor Vehicle Safety

Act notice of defect provisions; and

(e)

bus operator associations participate in regular national public safety

organisations consultation meetings with Transport Canada.

[29] As will be seen, there is frequent consultation and communication between

the United States authorities and industry players. There are two U.S. entities of

import here. The National Transportation Safety Board (NTSB) was established in

1967 as an independent US federal agency dedicated to promoting aviation,

railroad, highway, marine, pipeline, and hazardous materials safety. It is mandated

to investigate transportation accidents, study transportation safety issues, and

evaluate the safety effectiveness of government agencies involved in transportation

accidents. Amongst other things, the NTSB investigates significant highway

accidents and advocates safety improvements. It issues accident reports, special

investigation reports, and safety recommendations.

[30] The NTSB does not have power to mandate standards or regulations. That is

done by the National Highway Transportation Agency (NHTSA), an agency within

the US Department of Transportation. It develops and implements safety

performance standards and regulations for motor vehicles. The performance criteria

for motor vehicles and motor vehicle components are compiled into the Federal

Motor Vehicle Safety Standards (FMVSS). Vehicle and component manufacturers

must certify that all new vehicles and covered components comply with the minimum

provisions of the FMVSS at the date of manufacture. The 1998 Transport Canada

report alluded to that and the consultation between the regulators and the industry:

Transport Canada is one among many players involved in the question of bus

safety. Any action towards a change in safety regulation policy begins with

consultation at least with governments: provincial/territorial, the U.S. NHTSA

and FHWA; and with industry: bus manufacturers, bus operators and tour

operators (purchasers of bus charters). The cooperation of all those interests,

as well as the public, is necessary for successful safety regulation.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

2. Prévost and the motor coach industry

Page 12

[31] Prévost was founded in 1924 and is based in a Sainte-Claire, Québec, a town

of approximately 3,300 people. It manufactures approximately 400 coaches per year

and employs 1,400 people.

[32] Prévost’s principal competitor is Motor Coach Industries (MCI), which is also

based in Québec. The two manufacturers dominate the motor coach industry in

North America. MCI is the larger company. For a point in time, it was owned by

Greyhound. Other players are Van Hool and Setra. The latter is owned by Daimler.

Mr. Bolduc, the former president of Prévost, described Van Hool and Prévost as

competing for the number two position (after MCI) in North America. In 1982, he

estimated that Prévost had ten percent of the North American market. In 2015 it

reached and peaked at thirty percent market share.

[33] In 1995, Volvo Group purchased one hundred percent of Prévost Car Inc. and

in the same year sold 49% to a British company, Henlys PLC. In 2004, Volvo re-

acquired the Prévost shares from Henlys. Prévost is now a division of Volvo Group

Canada Inc., which is part of the international Volvo Group.

3.

The H3-45 Bus Model

[34] The bus was a model H3-45. The design for the model began in 1992 and the

model was introduced in 1993 as a model year 1994 product. Design changes were

introduced between 1995 and 1998, primarily with respect to the driver’s

environment and side windows. As I detail below, the side windows were changed

from laminate glass in framed windows to frameless tempered glass.

[35] When the bus was initially designed, Volvo did not own Prévost.

[36] The specific bus involved in the accident was manufactured in April 1998. It

was configured with 56 passenger seats. The driver’s seat had a lap belt; the

passenger seats had none.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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[37] The bus was a monocoque design also known as “unibody” or “integral”, as

opposed to a body-on-chassis design. At the risk of oversimplifying, the latter

involves a ladder-type frame on top of which a bus body is attached. One of the

main differences between the two is that the unibody design has crumple zones

which are meant to absorb energy in a crash. As described by Mr. Bolduc:

Well, a body-over-chassis behaviour would be a little bit like -- and I will talk

about image to help. If you take a baseball bat and you drop it to the floor it

will bounce back. So this means that the structure itself does not absorb a lot

of energy. All the energy is transferred. On the other hand, a monocoque

structure is built of a lot of small components. See it a little bit like if you

would take any shape you want to create in a monocoque, and you would

take a web, a spider web, and you wrap it around. So you're talking about a

larger, more complex structure where all the components will be oriented in

the direction of the forces you want to address.

And when you have a collision or when there is an impact, those smaller

components, compared to the larger beam, will start to bend and they will

start to absorb the energy. So therefore, it will not bounce back all this energy

either to the passengers or to the car in front or the other -- so it will absorb

as it gets bended and gets deformed. So basically in terms of dynamics of

accidents, this -- the monocoque structure is a more complex but more

energy absorbing structure.

[38] Mr. Bolduc said that in North America, the industry moved from chassis to

unibody construction 30 to 50 years ago.

[39] Passenger protection was provided by what was termed in the industry as

“compartmentalisation”. The first element of this was the monocoque design which—

as I have set out—was designed to absorb impact in a crash. Mr. Bolduc described

the balance of the concept:

[Y]ou see that as a bubble around the passenger, a little bit like you would

have an egg in its crate. So in this area you will try to have smooth

components. No tubing, no steel pipes. You will try to keep that person in its

seat. So a coach with the compartmentalization strategy would have -- well,

the seat in front will be high. So a high back in front of you that will collapse if

you put pressure to it. It will absorb energy if you're moving there. You will

have armrests on each side of you. So it keeps you in this area. You would

have a foot step where you put your foot, but the minute that you put your

foot there, you're better braced if something happened. The hat rack on top of

your head will have carpet into it. So the idea is to have a soft shell around

the person. So that was the approach of compartmentalization, keeping the

people in this shell surrounded with smooth or energy absorbing material.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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[40] The concept of compartmentalization and the belief in its effectiveness was

not an invention of Prévost. Rather, as will be seen, it was the industry standard,

known and approved by the Canadian and US regulators. All thought the safety

record of the bus industry in terms of overall crashes and serious injury to

passengers was exceedingly safe. That said, it was recognised that rollover

accidents—as the one here was—were the most serious type of accident because it

could lead to passenger ejection. However, rollover accidents were by far the

minority of bus accidents and were considered rare events.

[41] Prévost began to manufacture the H3-45 coach with seatbelts in 2009, initially

as standard equipment but with an opt-out option. It was the first North-American

coach manufacturer to introduce seatbelts.

[42] The reason for the opt-out choice was because of customer reluctance to buy

the bus with seatbelts, in part due to the extra cost. As described by Mr. Bolduc, the

customers were “stuck on their position”. Their attitude as described by Mr. Bolduc

was “It's not required by law and I'm not going to pay for it. I'll buy something else. If

you're not able to supply me that coach, we'll buy from the competition.” In 2011,

Prévost removed the opt-out choice for the U.S. and removed it for Canada the

following year.

[43] A major impetus for the addition of seatbelts was a crash test done by

NHTSA in December 2007, as I set out below.

[44] In 2010, Prévost offered a retrofit programme for seats with belts. It was built

to a 10g (the force of gravity or acceleration on a body) standard because that was

the maximum that was possible for the retrofit. New buses were produced to the 20g

standard.

[45] The retrofit comprised seats with integrated seatbelts. The cost to a customer

was $30,000 to $50,000 depending on the choice of seat options and fabric, plus

$2,500 of hardware that was required. Prévost offered the retrofit at its cost because

it recognised the heavy cost of retro-fitting a fleet of coaches. In addition to the

Ding v. Prévost, A Division of Volvo Group Canada Inc.

Page 15

hardware and installation cost, Prévost’s customers would lose revenue while the

installation was done, which could take up to two weeks.

[46] Prévost sent its customers an email attaching a brochure for the retrofit. An

email was sent to Western, but none of its witnesses could remember receiving it.

Western did not purchase any retrofit kits.

[47] The fact that the Western witnesses did not recall receiving the retrofit

brochure does not mean that they did not receive it. The same can be said for the

fact that it was not in Western’s documents, which were not able to be produced in

their entirety. The company was packed up and relocated two months prior to the

accident. It then moved again in the summer of 2015, when the assets of the

business were sold and the company shut down.

[48] The email was sent to the correct email address, and I find as a fact that

Western received it.

B.

Was Prévost negligent in manufacturing the H3-45 coach without

seatbelts in 1998?

[49] Prévost has admitted the following with respect to causation:

Prévost concedes that if the court finds that (1) Prévost breached the

applicable standard of care in failing to install seatbelts in the Bus for

passengers, and (2) Ms. Ding and/or Ms. Pan would have been properly

using a seatbelt at the time of the accident had one been available, such

failure to install seatbelts caused or contributed to the injuries sustained by

Ms. Ding and/or Ms. Pan.

This does not go as far as admitting that the plaintiffs would have worn their

seatbelts if the bus had them.

[50] There is no dispute that Prévost owed coach users a duty of care not to

negligently design an unreasonably dangerous bus. The real issue is whether that

duty was breached.

[51] At its most general level, the plaintiffs’ position is:

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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 Not having seatbelts was dangerous in rollover accidents because of the risk

of passengers being ejected through the windows;

 Prévost knew of the risk from prior accidents;

 Seat belts could have feasibly been installed; and

 Prévost cannot rely on regulatory and industry compliance as a defence.

[52] Again at its most general level, Prévost says that when the coach was

designed and manufactured in 1998, the risk of ejection in a rollover was known, but

that rollover incidents were exceedingly rare. It was not known until 2002 that they

were responsible for a disproportionate number of deaths in motor coach crashes.

Rollovers were, and remain, rare events, and crashes involving death or serious

injury were rare. In 1998, government regulators were investigating whether

seatbelts were the most effective way of enhancing safety, given that they could

have a detrimental effect in other types of crashes. In 1998, the industry standard in

North America—in collaboration with regulators in Canada and the United States—

was not to have coaches with seatbelts. Prévost, it argues, therefore acted

reasonably in manufacturing its coach without seatbelts.

[53] I point out here that at the time the bus was designed, the regulators and

industry knew of the existence of bus crashes, that some of those crashes were

rollover events, and that passengers could be ejected from the bus in a rollover. I

mention this at the outset because counsel for Ms. Ding approached the matter as if

these were denied by Prévost, but they were not. Rather, what Prévost puts at issue

here is the balancing of risks. This will become clearer as this judgment unfolds.

1.

Industry and government consideration of seatbelts in motor

coaches

[54] In this section I will lay out the history of the regulators’ and industry’s

consideration of the installation and use of seatbelts in motor coaches. This is

relevant because it shows both the regulatory environment and industry practice. It

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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also shows the state of knowledge of the industry players, including Prévost.

Because the chronology is important, I have bolded the dates for ease of reference.

[55] Both Prévost and Ms. Ding provided detailed chronologies of bus crashes,

investigations, studies, and papers by North American and some foreign regulators.

Ms. Ding’s was an interactive graphic and it contained entries for virtually every bus

rollover and collision. I will not go to the same length here because it would make

this judgment overly long and complicated. More importantly, it is not necessary to

do more than set out the more significant events.

[56] The history here was largely proved by reference to documents introduced

pursuant to a document agreement acknowledging the authenticity of the documents

but not the truth of their contents. Therefore, these documents show the state of

knowledge of the industry but are not proof of the accuracy of that knowledge. That

said, many the Canadian documents were elucidated by a former Transport Canada

employee, Mr. Gardner, who had personal knowledge of them.

[57] The earliest matter referred to by the parties was in 1968. This involved a one

quarter roll-over near Baker, California, in which some passengers were partially

ejected. The NTSB recommendation was:

The NTSB recommends that the Federal Highway

Administrator: Expedite the proceeding initiated under Part II of

the Interstate Commerce Act, Docket Ex Parte No. MC-69,

Dated May 27, 1966, "To Inquire Into the operations of motor

carriers of passengers in order to determine whether it is

necessary or desirable to adopt regulations and establish

standard which would require carries to install, provide, and

maintain seat belts for the use of passengers and drivers.” The

experience in this case indicates definitely that restraint of

drivers and occupants in their seats under rollover conditions is

necessary to reduce initial injury, disorientation, and thus insure

more likelihood of timely post-crash escape from the vehicle.

This report and the Safety Board’s conclusion should be

seriously considered by the Federal Highway Administrator in

reaching his decision concerning a requirement that seat belts

be available in buses. The Safety Board urges that a decision

be made on this important matter which had been under

consideration for more than 22 months at the time this accident

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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occurred, and more than 30 months prior to the date of this

report.

[58] However, in response, the FHWA stated that it did not support the NTSB’s

position that belts should be required for bus occupants, but that it intended to

require the installation and use of lap belts for drivers of buses in interstate

commerce. The NTSB Recommendation was closed and superseded in 1985.

[59] Between 1968 and 1973, a number of other recommendations were made by

the NTSB, but NHTSA made no requirement for seatbelts in motor coaches.

[60] After 1973, the NTSB ceased to issue recommendations favoring seat belts in

coaches. The next discussion by the NTSB of seatbelts on coaches is contained in

their report on motorcoach safety in 1999 (discussed further in para. 73).

[61] In 1994, the installation of three-point seatbelts in new motor coaches

became mandatory in Australia.

[62] In June 1996, the EU enacted legislation regarding the installation of

seatbelts in buses heavier than 11,023 lbs with more than eight seats. It applied to

all new vehicle designs manufactured after October 1, 1997, and to all vehicles that

went into service after October 1, 1999. It required lap/shoulder belts at all exposed

seats. For seats behind energy absorbing seat-backs, it required either three-point

or two-point belts. No retrofit was required.

[63] In 1997, Transport Canada began an internal review of the most serious

motor coach collisions in its files. The report was initiated by William Gardner, who

was both a fact and expert witness at the trial. Mr. Gardiner was the head of

Transport Canada’s Crashworthiness division for the 18 years prior to his retirement

in 2006. Prior to that, he was the regulatory safety engineer responsible for bus

safety at Transport Canada. He stated:

The review concluded that many fatalities resulted from ejection from the bus,

often during a rollover event. Although it was clear that most coach collisions

did not produce serious injuries, a multi-phased study was initiated in 1998 to

determine whether occupant safety in motor coaches could be improved.

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He said he thought this was the first analysis of its type in North America. He used

both Canadian and U.S. data for the study.

[64] Mr. Gardner described the difficulty in obtaining and analysing the data:

The files that I had to review were not accessible in terms of digital data. The

only way I could do it was to take hardcopy files of collisions that had been

investigated and combine that with what data we had so that I could -- I could

pinpoint what was referred to in the data and what was referred to in the files

and connect the two so that I could read what had actually happened in that

collision and therefore interpret myself what type of bus was involved and

what were the injuries and so on that had occurred.

[65] In 1998, the coach involved in the accident was manufactured.

[66] In 1998, a study by the German company DEKRA Automobil AG was

published: Pointers Toward the Improvement of Safety in Buses, Derived from an

Analysis of 371 Accidents Involving Buses in Germany and From Crash Tests

Results. The DEKRA report noted the safety of the motor coach industry but the

enhanced dangers to bus occupants in rollover crashes. It examined the protective

features of two-point and three-point restraints and noted:

Given the current status of knowledge, two-point seat belts offer advantages

over the three-point belt (shoulder/lap belt). The particular dynamics with side

overturns and rollovers can lead to the torso of the belted passenger

becoming free from the shoulder strap. This causes the entire belt to become

loose and there is also the risk of the passenger becoming released by the

belt around the hips.

[67] In 1998, Transport Canada initiated a study to determine whether motor

coach passenger safety could be improved. It was done in three phases. According

to Mr. Gardner:

The first phase of the study involved the preparation of a report consolidating

the collision experience of the European Community, Australia and North

America. The European community and Australia were selected since they

had developed regulations concerning seat belts and therefore also regulated

seat and belt anchorages.

. . .

The second phase of the project was funded jointly by Transport Canada and

the National Highway Traffic Safety Administration in the U.S. It involved

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conducting testing with current bus seats that utilize three point seat belts on

an acceleration sled, and conducting quasi-static tests on these seats . . . .to

establish the floor loading required for seat belt equipped seats.

. . .

The third phase of the study involved research to establish whether

substantial improvements in occupant protection could be realised by the

introduction of a passive safety compartment utilising improved glazing on

motor coaches. The research involved computer simulation of coach rollover

to establish the forces expected to be applied to the glazing by the bus

occupant during rollovers of various severities.

[68] In November 1998, Transport Canada published a report titled Review of Bus

Safety Issues. The abstract stated, in part:

The data show that travel by bus generally is very safe. Nonetheless, the

review identifies a number of areas that may warrant further investigation and

recommends that efforts continue to reduce all road collisions, and that

consultations with provincial, industry and other stakeholders be undertaken

as a first step toward any change in bus safety regulatory policy.

[69] The report referred to accident statistics:

In the ten years 1987 to 1996 there were 44 bus passengers killed and bus

passengers injured in buses other than school buses or urban transit buses.

For buses specifically identified as "intercity" there were 7 fatalities (average

less than 1 per year) and 1403 injuries. One accident in 1997, however,

claimed 43 lives.

. . .

Of the 4,665 injuries in Canada, the majority are minor. Less than 250

involved admission to hospital. The relatively small numbers of identified

serious injuries and fatalities limit statistical information on potential

passenger impact protection measures.

There are various possible solutions to passenger injury. Among them are:

additional body structural integrity; window retention designed to resist

ejection; school bus style seating compartmentalization; and seat padding. It

is also possible that some of the injuries could be addressed by careful

attention to fittings such as seatback tables, overhead luggage racks and

video screen attachments.

The latter paragraph is obviously a reference to compartmentalisation, without the

use of the name.

[70] The report went on to discuss seat belts:

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Seat Belts

Seatbelts would be of potential benefit in only a very few cases. They would

need management by bus operators and reliable use by passengers to

achieve effectiveness. The benefit is too uncertain to impose seat belts

without a clear demand for a standard from the public and the motor carrier

industry.

. . .

Two point seat belts help to prevent ejection or being thrown from a seating

position and are relatively easy to install and use. Three point seat belts

provide some performance enhancement but have their own disadvantages,

including complexity and difficulties with use and comfort. In either case

portions of the bus interior need to be redesigned to reflect passenger crash

dynamics with specific kinds of seat belts.

[Emphasis added.]

[71] The report referred to the Australian and European seatbelt standards:

Some major bus collisions have led to seatbelts being required on highway

coaches in Australia and Europe. There is a new ECE seatbelt standard for

buses with accompanying seat specifications. The presence of seatbelts on

highway coaches in other countries raises the issue whether they should also

be considered for North American intercity buses. There are no obvious or

easy answers to improving bus safety. A number of areas of current interest

are identified in the report and most are already being addressed. The

general recommendations are to continue efforts to reduce overall road

collisions and to consult extensively with provincial governments, industry

and bus stakeholders as a first step towards any change in bus safety

regulation policy.

[Emphasis added.]

[72] Mr. Gardner testified that the European and Australian standards were not

adopted at this time because it was not known how they could be applied to the

Canadian situation. He said that Transport Canada had a lot of work to do to get to

that stage.

[73] In September 1999, the NTSB published a report titled Highway Special

Investigation Report: Bus Crashworthiness Issues. Its conclusions noted the risk of

ejection and injury in rollovers and recommended testing of new occupant crash

protection systems to standards developed by NHTSA based on actual crash testing

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of motor coaches. The report had two recommendations concerning seatbelts in

motor coaches:

In 2 years, develop performance standards for motorcoach occupant

protection systems that account for frontal impact collisions, side impact

collisions, rear impact collisions, and rollovers. (H-99-45)

Once pertinent standards have been developed for motorcoach occupant

protection systems, require newly manufactured motorcoaches to have an

occupant crash protection system that meets the newly developed

performance standards and retains passengers, including those in child

safety restraint systems, within the seating compartment throughout the

accident sequence for all accident scenarios.

[74] Mr. Gardner was a witness at the public hearing that led up to the report. He

said he did not understand the first paragraph regarding the two year mandate to

mean that seatbelts should be required as part of the occupant protection system.

Rather, that was a question to be determined.

[75] The report referred to the Australia and EU regulations (the latter detailed

above, para. 62) pointing out shortfalls in their standards and research (or lack of it)

leading up to the developments of those standards.

[76] With respect to Europe, the report noted:

The primary intent of this legislation was to reduce fatalities due to ejection.

The EU conducted no dynamic crash testing of buses in support of its

occupant restraint system design. Further, no dynamic crash testing of buses

is required of manufacturers by the legislation. Although researchers stated

that the crash pulse was thought to be supported by dynamic crash testing of

motor coaches, no one was able to refer to actual crash tests. Sled testing

was performed in support of this regulation at the Cranfield Impact Centre

using the UNECE R80 crash pulse.²

The report was critical of the EU allowing the use of two-point belts noting that it

would cause greater injury than no belt at all.

[77] With respect to Australia, the report noted:

²In a sled test, seats would be placed on a platform on wheels (the sled) which is propelled into a

barrier: see para. 96 below.

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Like the EU, Australia conducted no dynamic crash testing of motor coaches

in support of its regulation.

And:

The EU and Australian occupant crash protection regulations were based on

sled testing. Actual dynamic testing of motor coaches was not conducted to

determine the effectiveness of restraint systems as occupant protection

systems.

Occupant protection systems should be tested to performance standards

before their implementation to ensure that they are beneficial and to guard

against possible negative effects such as have occurred in the rear seats of

automobiles in front collisions.

[Emphasis added.]

[78] In February 2001, Transport Canada issued its report Bus Safety

Consultations – Final Report. It was prepared in collaboration with provincial and

territorial representatives. The objective of the consultation was to obtain input from

stakeholders on bus safety issues, particularly with respect to the installation of seat

belts in school buses and motor coaches.

[79] In the introduction, after noting the very good history of school bus and motor

coach safety, the report noted:

Canada’s buses are not required to be equipped with seat belts. There are

very few passenger injuries that would potentially be prevented by seat belts

and there are potential hazards involved with the use of seat belts by bus

passengers, especially children. The most successful safety solution for car

occupants is not necessarily the best for bus passengers.

[80] The report made reference to the view of stakeholders:

The issue of seat belts was raised at each of the sessions because of its

importance to Transport Canada. The reason for this is mainly due to the

public perception that there should be seatbelts in motor coaches (based in

part on the fact that most other vehicles require the use of a belt). The call for

seatbelts is most acute after an accident, such as the one in Quebec at Les

Éboulements.

When raised during the sessions, however, the overwhelming majority of

stakeholders did not feel the installation of seatbelts was an issue. The

reason for this is twofold: the motor coach industry’s strong safety record and

inconclusive evidence that seatbelts would prevent injury. Some participants

did feel further research on three point belts would be useful and that

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passengers seated in non-compartmentalized areas should be fitted with seat

belts. However, representatives of bus manufacturers argued the industry

does a good job investigating crashes and the current lessons do not point to

the need for seatbelts in motor coaches.

[81] With respect to “suggested next steps” for seatbelts in motor coaches, the

report stated:

Conduct more research to determine the safety impact of seat belts, including

three point belts. Response: Transport Canada keeps current on all relevant

research initiatives, including that done recently in Australia and Europe, and

does not feel further Canadian research is warranted at this time.

[82] On April 30, 2002, Transport Canada and NHTSA held a joint public meeting

on motorcoach safety improvements. This was a consultative hearing involving the

regulators, the NTSB, owner-operators including their professional associations,

manufacturers of coaches, and manufacturers of coach seats. No report was

produced but a verbatim transcript was made. Mr. Gardiner was a representative of

Transport Canada.

[83] The purpose of the meeting was described by NHTSA’s Associate

Administrator for Safety Standards when he opened the meeting:

Our expectation is that we will get information and reactions to the different

approaches we are considering for improving motorcoach occupant

protection. We have no preconceived notions that we won't do this or we will

do something else.

What we will say is whatever we do is going to be based on solid data and a

scientific analysis of the occupant protection situation. NHTSA and Transport

Canada are not going to require changes to the current regulations just for

the sake of quote "doing something".

[84] A NTSB representative commented on the safety of motor coach transport

and remarked that the number of people killed in motor coach crashes was trending

downward and was remarkable, given the number of passenger miles travelled, and

referred back to the 1999 report and its recommendations.

[85] The NTSB’s Director of the Office of Highway Safety, Mr. Osterman,

discussed compartmentalisation and stated:

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We report on what we found and if you can stay within the compartment,

even without a seat belt, and this is one of the reasons why the Board did not

come out and say put seat belts on motorcoaches under their current

configuration. As a matter of fact, we think that may not necessarily be the

right engineering solution. Although seat belts may be the right solution, you

have to redesign the compartment with seat belts engineered into the

equation rather than simply applying them to the existing seat that was never

designed for belts.

[Emphasis added.]

[86] Industry representatives included those from Prévost, Van Hool and

Greyhound. They were all in general agreement with the need for further research

and the setting of standards. They noted the effectiveness of compartmentalization

but recognised that ejections resulting in death could take place with rollovers,

although rollovers were a small percentage of total accidents. The president of

Greyhound, Mr. Haugsland, noted:

Greyhound reviewed its accident history for the period January 1, 1999 to

April 16, 2002. We found that 54.13 percent of the DOT reportable accidents

were front-rear impact collisions while rollover-overturns represented just 2.3

percent of the DOT reportable accidents. In other words, Greyhound had over

23 times as many DOT reportable front-rear impact collisions during that

period than we had DOT reportable rollover-turnovers.

. . .

But NHTSA and Transport Canada must be certain that in trying to increase

the occupant protections from an infrequent catastrophe, the rollover ejection,

they do not adopt standards that detract from the excellent protections

available for the much more common and potentially catastrophic event, the

front-rear crash.

[87] Prévost’s director of safety and compliance, Mr. Bertrand, spoke at the

meeting. With respect to seatbelts he stated:

Big question. Seatbelts. In the invitation it was mentioned. Adequate strength

to withstand impact. What kind of impacts? I believe it's not practical to

consider all kinds of impacts and it would be preferable to consider the most

probable ones. The two major accidents that Bill described were very, very

severe and I don't think we will see those kind of impacts very often. If proper

testing proves their efficiency, we would favour lap belt over shoulder type.

The driver's seat could be although fitted with a shoulder belt and I believe

there is already some but that's pretty widely spread because of the seat

design itself which has an air suspension and not very comfortable for a

shoulder belt.

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Also, the first row of seat will be the most important seats to work on because

they don't have a whole lot of protection in front of them except the modesty

panels which is quite different than a seat in front of another. And also, some

rear seats which are facing the aisle in some coach design where you have

three seats at the back of the rear bulkhead, there is most of the time one

seat right in the middle of the aisle and this passenger could be better

protected.

[88] In his evidence at trial, Mr. Bolduc partially disagreed with this: he said

Prévost was ahead of where Mr. Bertrand said it was because Prévost was, in fact,

moving to three-point belts.

[89] The differences between chassis-on-frame type buses used in Australia and

Europe, and the monocoque construction, used in Canada and the United States,

was noted at the meeting.

[90] In June 2002, Transport Canada published a report titled Evaluation of

Occupant Protection in Buses, prepared for it by RONA Kinetics and Associates Ltd.

Mr. Gardiner was the project manager for Transport Canada. The report’s main

author was Dr. Jocelyn Pedder who had worked in England and had connections in

Australia as well. Mr. Gardner described her as ideal to conduct the study, the goal

of which was to set out the state of the art in bus occupant protection, focussed on

new intercity buses. The report reviewed bus occupant protection research and

regulatory practices in Canada, the United States, Australia, and Europe. A goal was

to identify issues for further consideration.

[91] A conclusion of the RONA report was that rollovers and ejections were the

major causes of serious and fatal injuries. Mr. Gardner said he considered that to be

a major conclusion of the study.

[92] With respect to seatbelts, the conclusion of the RONA report was:

12.5 Seat Belts

Full scale and sled tests using instrumented dummies as well as modelling

have shown that lap/torso seat belts are highly effective in reducing the likely

injuries to bus occupants.

Feasible seat systems are now available which allow the fitting of lap/torso

seat belts for bus occupants without weight penalty. Through the installation

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of seat belts in buses, there is also an opportunity for a consistent approach

to safety systems for motor vehicle occupants.

The fitting of lap belts is less beneficial and requires significant improvement

in the energy absorption capability of bus interiors. Research indicates that

lap belts may increase the risk of head injuries.

Seat belt retrofit experience in Australia and Britain was hampered by poor

control and the overall problems suggest it is inadvisable. If retrofit seat belts

are used, available floor structure must be strong enough or capable of taking

loading.

There are concerns regarding the difficulties of enforcing the use and proper

use of seat belts. There are no known seat belt use data.

[93] With respect to the enforcement of seatbelt use on coaches, in his evidence

Mr. Gardner noted that passengers could not be seen by passing police vehicles

because they were too high up and that the only effective way to enforce use was for

an officer to board the bus.

[94] In the spring and summer of 2003, Transport Canada carried out sled tests on

coach seat systems, as well as quasi-static tests using loading methods similar to

those used in the European and Australian standards.

95]

The analysis and results of the 2003 sled tests were set out in a March 2005

report of Biokinetics and Associates (the Biokinetics Report). The report compared

the test results with seat belt performance standards from Australia and Europe.

[96] The report describes the dynamic testing methodology using a sled:

The overall approach to the dynamic testing is similar in both test standards.

That is, two rows of seats are mounted to a test bed, crash test dummies are

installed, and the test bed is either crashed into a barrier or accelerated

rearward with a sled. The complete seats must be mounted as they would be

in a vehicle and must also be equipped with all the standard options like

storable tables. The ADR 68 test method has some variation with the addition

of a third row of seats.

However, the report noted that the testing scenarios used in Australia and Europe

were different, that the required crash pulses for the standards differed greatly

between the two, and that the seat performance criteria were also different.

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[97] The report also described static testing and alternative anchorage testing and

noted the there were, again, differences between Australia and Europe.

[98] The Biokinetics Report also reported on the testing that was done on

Australian and European seats done by Transport Canada. It noted, once again,

differences between their performance. It noted the future work that would have to

be done by seat manufacturers in designing a set once performance standards were

established:

The data provided by both the belt force transducers and the load plate which

was mounted between the seats and the floor should provide useful input for

seat, seatbelt and anchorage designers in the event that a standard is

introduced in Canada in future. Knowledge of the types of loads produced

during the specified testing should be of assistance in initial design work to

help ensure a design which will be likely to pass the tests. Given the moment

data about the Centre of Gravity of the load plate, and knowing the geometry

of a proposed seat, a manufacturer would be able to calculate expected loads

on the various anchorages using the Transport Canada test data.

Unfortunately, in some cases, seats failed in various ways before full

specified test loads were reached, and none of the dynamic tests reached the

more severe ADR 68 crash pulse levels. Nevertheless, the static tests were

accomplished with both seats passing at ADR and ECE required applied

force levels, so should provide useful data.

[99] The report concluded:

If Transport Canada wishes to implement a standard for seat belts in

motorcoaches in the future, it is recommended that ADR 68 (in its most

current form at the time) be used as a template. Specific test input conditions

and performance criteria should follow the methodologies and values as

noted in detail earlier in this report. These values, of course, may be varied if

additional data is available at the time to suggest this is a reasonable

approach.

[100] Mr. Gardner explained that this was not a recommendation to adopt the ADR

standard’s criteria. Rather, Mr. Gardner explained that:

I think what they’re suggesting is that if a regulation is adopted in Canada that

could be stylized around the ADR 68. I don't think they or ourselves were in a

position to say that we should just adopt 68. We didn't even know exactly

how to test ADR 68 in that form. I don't think they or ourselves were in a

position to say that we should just adopt 68. We didn't even know exactly

how to test ADR 68 in that form.

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He added:

It encouraged us to continue with the plan to gather more data on how buses

would react to proper rollover to do modelling work and to -- and eventually to

do more work on the sled to try and establish better methods of injury criteria

and appropriateness of a pulse for the Canadian sled. But primarily the next

step was to model a bus and determine how it performed both from a view of

glazing and from a view of seatbelts.

[101] To digress momentarily to Prévost, in 2003, it began to plan the engineering

and developing of seatbelts for its buses.

[102] In August 2007, NHTSA published NHTSA’s Approach to Motorcoach Safety.

Its goal was to provide a comprehensive review of motorcoach safety and what

NHTSA was proposing to do to address them. With respect to seatbelts, the report

compared the Australian and European standards and concluded:

PLANNED APPROACH: While both Europe and Australia currently have

such requirements for seat belts on motorcoaches, they differ. The

fundamental information that would be necessary to establish adequate

performance requirement for seat belts on motorcoaches does not exist. For

example, the crash forces transmitted to the occupant compartment that seat

and/or belt anchors would need to sustain are unknown. An approach for

applying seat belts to motorcoaches will require the following tasks:

1. Procure a recent vintage motorcoach and conduct a frontal barrier

crash test with instrumented dummies aboard. [2007]

2. Using the crash pulse information obtained from the crash test,

conduct sled testing under various conditions to determine the level of

occupant protection afforded by each and the forces transmitted to the

belt and seat anchors. The sled test conditions would include

unbelted, lap belted, and lap/shoulder belted occupants using current

North American motorcoach seats as well as European and/or

Australian designs. [2007]

3. With this information, develop FMVSS No. 210 type performance

requirements for the seat belt assembly and seat anchorages. [2008]

[Emphasis added.]

[103] In December 2007, after input from the industry, NHTSA conducted a crash

test of a 2000 MCI coach with crash dummies. The bus was fitted with seats from

different manufacturers in different configurations: two-point belts, three-point belts

and no belts. NHTSA reported the results to the industry in January 2008.

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[104] In May 2008, Transport Canada met with the industry’s Motorcoach Crash

Test Industry Group to plan crash tests, which would include a rollover. The test was

planned for July 2008.

[105] In 2009, Prévost started delivering coaches with seatbelts, with an opt-out

option. I will return to this later.

[106] In November 2009, the U.S. Department of Transportation released its Motor

Coach Safety Action Plan. It stated:

FARS data indicates that ejection due to a rollover crash causes the highest

percentage of motorcoach passenger fatalities. NHTSA determined that

installing seat belts would be the most direct method of retaining passengers

within the seating compartment and preventing ejection. Seat belts could also

potentially provide protection in multiple crash modes, including frontal

crashes, side crashes, and rollovers. NHTSA tentatively determined that

installing seat belts on motorcoaches has potential to enhance motorcoach

occupant protection.

It specified requiring seatbelts as an action item with a goal of publishing a Notice of

Proposed Rule Making (NPRM) in the first quarter of 2010 and the development of a

final rule in 2010 to 2011.

[107] Prévost offered its customers a three-point retrofit in August 2010. I will also

return to this later.

[108] In August 2010, NHTSA published a notice of proposed rule making with

respect to seatbelts in motorcoaches.

[109] On August 28, 2014 the crash that gives rise to this litigation occurred.

[110] In November 2013 NHTSA published its final rule requiring three-point

seatbelts for coaches manufactured after November 2016.

[111] In March 2016 NHTSA issued a Report to Congress Retrofit Assessment for

Existing Motorcoach. It confirmed an earlier position against requiring the retrofitting

of seatbelts because belt usage rates would not be high enough to offset the cost of

retrofitting. NHTSA used a seat belt usage rate of between ten and fifty percent in

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coming to this conclusion but stated that the more realistic usage rate was ten to

twenty percent.

[112] As previously noted, in November 2016 the requirement for three-point belts

on coach passenger seats in the US came into force.

[113] I now move back to Canada and conclude this chronological review. In June

2018 Canada promulgated regulations requiring three-point seat belts on motor

coaches, with no retrofit requirement. The regulations come into force on September

1, 2020.

2.

Why Prevost did not install seatbelts until 2009 and the decision

to change to seatbelts

[114] As noted, the engineering planning for seatbelts was started in 2004. Prévost

began to deliver the H3-45 with three-point belts in 2009. I will now canvass why the

decision to add seatbelts was made and why it was made when it was. This is

obviously relevant to the central allegation of the plaintiffs that seatbelts ought to

have been installed in the subject coach when it was manufactured in 1998.

[115] The evidence for this decision-making comes almost exclusively from Mr.

Bolduc’s testimony and Prévost documents. As I mentioned above, Mr. Bolduc was

the former president of Prévost. He became involved with safety issues in 1994

when he became vice president of manufacturing and part of the product committee.

In 2004 he was promoted to president and CEO.

[116] Mr. Bolduc explained how Prévost —along with the whole industry—was

initially focussed on compartmentalization as the main occupant safety feature. I

have set out his description of compartmentalisation earlier (para. 39). It is worth

noting again that on a motor coach this includes the monocoque design with its

collapse zones, as opposed to European and Australian buses which are body-on-

ladder-frame construction without the energy-absorbing zones. Mr. Bolduc explained

that while the term compartmentalisation was also used in relation to school buses,

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the implementation was different, including that school buses had body-on-frame

designs, again without collapse zones.

[117] Mr. Bolduc said that prior to the decision to install seatbelts,

compartmentalisation had a good track record, as did the whole industry. The

majority of accidents were front and rear-end collisions in which

compartmentalisation worked very well. While there were rollovers, the numbers

were low. Therefore, seatbelts were not designed into the H3-45.

[118] There were a number of things that cumulatively led to the decision to make

the change.

[119] Mr. Bolduc said that in 1998 and 1999 there was a spike in serious

motorcoach accidents. This is shown in the following graph from US Department of

Transportation Motorcoach Safety Action Plan (above para. 106).

[120] After this, Mr. Bolduc said the industry began discuss seatbelts. As he put it:

Because the industry at that time, we were all questioning ourselves. Is

compartmentalization the only element. Could it be better. Could we do

something extra. And I would say this has boiled into my mind up to the point

where we have started to put into our plan steps, and some of them are

directly coming from recommendation that we -- that we have being part of

those discussions in 2002, 2003.

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[121] This prompted Prévost to have its prototype department start testing the seat

tracks to which the seats were hooked and to determine whether it could be

reinforced.

[122] In 2006 or 2007, after Prévost had done the first testing on its seat anchorage

system, it started contacting its seat suppliers and learned they did not have seats

with seatbelts. The plaintiff challenges that by pointing to advertising from another

manufacturer. However, no one from that company was called. In any event, there

was no evidence of seats with belts being available when the coach was built in

1998.

[123] A final impetus was the 2007 NHTSA crash test that I referred to above (para.

103). Mr. Bolduc testified:

Finally, I would say in December 2007 NHTSA finally made what I believe the

most important testing of the industry where they have done a full crash test,

a sled test, and after that a static test in the right order. They defined the

parameter of the -- of their crash test. They picked up the information,

reproduced it to the sled test, looked at the situation carefully and what was

the dynamics, and then made the static tests based on everything they were -

- they had find out. And this -- I would say there, I was personally starting to

be convinced that we could do something, having this new data available and

having those tests being done. And I would say starting there, for me the

machine was started, and we would on a short period of time have seatbelts

into Prévost coaches.

[124] After reviewing the data, and discussing the matter with Greyhound and a

seat manufacturer, IMMI, Prévost decided to design for a 20g rating for seat and belt

anchorage.

[125] The plaintiffs allege that seatbelts were not installed in the H3-45 model

because Prévost wanted to stay competitive with MCI and wanted to save costs. I do

not accept that, and accept Mr. Bolduc’s evidence which is largely backed up by the

industry narrative in the prior section and Prévost’s documents. Moreover, a desire

to save costs is belied by the decision to move to seatbelts ahead of the rest of the

industry.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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[126] Mr. Bolduc was asked why Prévost did not do its own testing. He explained

that the only entities he was aware of that could undertake and understand crash

testing with fully instrumented dummies was NHTSA and Transport Canada:

It's too complex. The complexity is not to have a dummy. The complexity is to

have all the string gauge and the data coming out of it and to analyze all that.

Because we're not biomechanics engineers or doctors or anything like that.

We don't have that knowledge and we don't have the capacity to keep people

like that.

There is nothing in the documents or other evidence that indicates either NHTSA or

Transport Canada expected bus manufacturers to do testing with dummies. The

evidence is that they were both content to do the testing with the collaboration of the

industry.

[127] Mr. Bolduc was questioned on the role of Volvo with respect to seatbelts in its

buses in an attempt to establish that Prévost could have simply adopted their

design. A Volvo pamphlet found by the plaintiff on Volvo’s website was put to Mr.

Boulduc. It said:

Volvo Buses has introduced the three-point seat belt on all seats in the early

1990’s.

However, Mr. Bolduc testified that at that time, Volvo was not manufacturing buses;

rather it was just supplying chassis to bus manufacturers.

[128] With respect to access to Volvo engineering, Mr. Bolduc explained that when

Prévost was owned by both Henley and Volvo (1995 to 2004), there was little access

to technical information. This was because Henley and Volvo were, indirectly,

competitors. This was one reason Prévost did not buy engines from Volvo until

2007.

[129] Moreover, the buses in North America are bigger and wider than those in

Europe and are not chassis-on-frame. They have different anchorage points.

Therefore, the seats from Europe would not work for North American buses.

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[130] In essence, therefore, seats with belts were not available to Prévost until after

2006.

[131] With respect to not having adopted the European or Australian standards

while waiting for the NHTSA testing, Mr. Bolduc said:

Well, again I have the same comments. The Australian -- even NHTSA and

Transport Canada, when they made their test, they did not even look or try to

replicate the Australian standard the way it's been done or tested. They

focused a little bit more on the European standard which was a little bit more

understandable, but again the European standard was not complete and was

not done in the right sequence to develop the right standard. So the

Australian -- they responded to a political and public demand rush rapidly and

never completed their test. We would not -- we were not in a position to follow

something that was not properly done. That's not our way of doing things.

The view of the U.S. and Canadian regulators was in line with that approach.

3.

Plaintiffs’ expert evidence regarding seatbelts

[132] I deal here with the expert evidence tendered by the plaintiff in relation to the

question of whether seatbelts ought to have been installed. Several of the plaintiffs’

experts deal with both the seatbelt and the glass issues; I deal with the latter

separately.

[133] In order not to interrupt the trial and to allow it to finish on schedule, the

experts gave their evidence on the basis that challenges to their qualifications and

admissibility of their opinions would be determined as part of my final decision. (The

one exception to that was the report of Mr. Cole, with respect to which I made a mid-

trial ruling that I set out below.) As will be seen, Prévost challenged several of the

plaintiff’s experts.

a)

Gregory Sypher

[134] Mr. Sypher was tendered to give “[O]pinion evidence in the area of

transportation engineering, accident investigation and reconstruction, transportation

safety including occupant restraint systems in motor vehicles, injury data analysis,

and the forces and mechanics associated with injuries to the human body.”

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[135] The questions posed to Mr. Sypher were:

1. Does the design of the seat system in the subject Bus pose a safety

risk to any or all passengers? If “yes”, please explain the risk and the

potential severity of harm that could arise from the risk.

2. Were design alternatives or countermeasures available to bus

manufacturers in the model year 1998 to reduce the risk of injury in a

rollover? If “yes”, please provide estimated costs for any solutions you

identify.

3. Does the fact that the windows on the Bus were tempered glass, and

not laminated, pose a safety risk to passengers in a rollover? If “yes”,

please explain the risk and the potential severity of harm that could

arise from the risk.

4. What is the likely mechanism of the injuries sustained by the

plaintiffs?

5. Would a seatbelt restraint system installed on the Bus at the time of

the Collision have reduced the likelihood of injuries to the plaintiffs?

6. Would laminated windows installed on the Bus at the time of the

Collision have reduced the likelihood of injuries to the plaintiffs?

[136] Prévost objects to his qualifications to address these questions. Prévost says

that, in any event, his opinions amount to speculation and do not assist the court. As

I will explain, I agree.

[137] Dealing with Mr. Sypher’s qualifications, his formal education was in civil

engineering dealing with highway design. His work experience was at Transport

Canada dealing mainly with accident investigation. He has no experience in the

areas he was tendered for, namely “occupant restraint systems in motor vehicles,

injury data analysis, and the forces and mechanics associated with injuries to the

human body”. On that basis, his report would be inadmissible.

[138] Even if that were not the case, I do not find his opinions to be helpful. To be

fair to Mr. Sypher, this is in due in part to the nature of the questions put to him.

[139] His answer to the first question, whether the design of the seat system posed

a safety risk to any or all passengers, was, in part:

Yes. The design of the seat system used in the subject Bus poses a risk to

the safety of all passengers because none of the passenger seating is

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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equipped with seatbelts. Therefore, passengers would not be adequately

restrained during collisions, especially those involving significant ‘lateral’

(sideways) and ‘vertical (up and down) accelerations, such as rollovers and

high severity side-impacts. This would have passengers at high risk of

serious injury and death from forceful impacts during such events.

[140] As I indicated above, the issue here is not whether there was an absolute

risk: the matter of is one of relative risk and a balancing of multiple factors. It is an

issue that needs to be seen in its broader context.

[141] His answer to the second question concerning availability of alternatives or

countermeasures, was:

Yes. Design alternatives and countermeasures were available to bus

manufacturers, including Prévost, to reduce the risk of injury to passengers

being transported within motorcoaches. The most effective countermeasure

would have been the proper design, manufacture and installation of a ‘three-

point seatbelt’ system for the passenger seats of the Bus.

[142] Mr. Sypher went on to describe three-point belts in general:

Other manufacturers were equipping some similar motorcoaches with ‘three-

point’ seatbelts for passenger seats years before the Bus was manufactured in

1998. Admittedly, seatbelt installation for passenger seating was not typical

practice at the time and often did not involve all passenger seats when

passenger seatbelts were installed. For example, the 2000 Van Hool 2145

motorcoach that was involved in the ‘Sussex Bus Crash’ that occurred in New

Brunswick in 2001 was equipped with seatbelts at seven passenger seats (at the

‘tour guide’ jump seat in the bus entryway, the four seats in the front rows, and

the rear row ‘aisle’ seat). However, properly designed seatbelt systems could

have been factory installed in the Bus, or properly retrofitted to the Bus prior to

the Collision, to provide protection for passengers during a rollover. Had this

been done, the Bus passengers most probably would have remained within the

protective structure of the Bus and, more importantly, in their respective seats

during the entire Collision - including all post-impact travel.

[143] The answer is problematic. First, once again, it does not consider the wider

context as it was known in 1998. Second, the response says three-point belts were

available and illustrates that by describing the Van Hool bus, which only had two-

point belts. In turn, Mr. Sypher uses that example to propose the hypothetical that

three-point belts “could have been factory installed” into the Van Hool bus. The

illogic of that is apparent.

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[144] What the opinion does not canvass is the matter posed in the second

question; namely, it does not point to any available seats with three-point restraints.

As I concluded earlier (para. 130), there were no available seats for North American

buses with three-point restraints until approximately 2006. There is no dispute that

two-point belts were not a suitable alternative.

[145] Questions four and five call for a biomechanical opinion, something Mr.

Sypher was not qualified to give. Questions three and five, regarding tempered

glass, will be addressed below.

b)

William Vigilante

[146] Dr. Vigilante is a psychologist with experience in psychological and human

factors research with a focus on human-machine interaction, product design, hazard

identification, and mitigation, risk perception, and the design and testing of warning

systems. The plaintiffs tendered him as an expert in in the field of human factors and

ergonomics relating to the relationship between product design, hazard identification

and mitigation, risk perception, and the design and testing of warnings.

[147] The questions Dr. Vigilante was asked were:

1. Was the increased risk of injury and death associated with rollover

accidents known to coach manufacturers?

2. Were the safety benefits of seat belts in rollover collisions known to

coach manufacturers?

3. Were the safety benefits of passenger seat belts known to coach

manufacturers?

4. Was the need to retro-fit existing coaches with passenger belts known

to coach manufacturers?

5. Was it reasonable for coach manufacturers to have provided

passenger seat belts in their coaches?

6. Was it reasonable for coach manufacturers to provide seatbelt

warnings in their coaches?

[148] There is no connection between these questions and what he was tendered

for, apart from perhaps the last question. Nor are the questions within his

background or expertise: Dr. Vigilante has no specific knowledge of the bus industry.

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[149] Dr. Vigilante’s answers to the questions came from a review of some of the

documents entered as exhibits, many of which I set out above. There may be cases

where special expertise is needed to interpret documents, such as an historian

interpreting historic records in an Aboriginal title case, but this is not one of those

cases.

[150] Dr. Vigilante’s opinions therefore go beyond his qualifications and they seek

to draw inferences from the documents that are not needed by the court.

[151] Moreover, his analysis of the documents was selective. His focus was on

NTSB recommendations to NHTSA, but he did not touch on the response of NHTSA

to those recommendations.

[152] The one area that Dr. Vigilante addressed in his report that was within his

expertise concerned warnings. His conclusions with respect to the question were:

9. On-product warnings can be permanently and conspicuously placed

directly in vehicles, and this practice effectively alerts and informs owners,

operators, and passengers of the safety benefits of seat belt use and the risk

associated with not using them particularly in a rollover collision.

10. Using a warning system in conjunction with passenger seat belts on the

subject Prévost coach would have been consistent with the design safety

hierarchy, ensured passengers were aware of the presence and benefits of

using the seat belt, and ensured critical safety information was available to all

passengers.

11. Had the warning system been in place on the subject Prévost coach,

passengers would have been provided with critical information related to the

use of the seat belt and encouraged them to wear it.

12. Should a manufacturer cho[o]se not to install seat belts into its coach,

they could have alternatively placed a warning in the vehicle alerting

passengers to the absence of the critical safety feature; the increase[d] risk of

severe injury and death they were subjected to should the vehicle be involved

in a collision, particularly a rollover collision; and that other coaches include

seat belts.

13. Had an alternative warning been in place on the subject Prévost coach,

passengers would have at least been informed of the increased risk

associated with the lack of seat belts and their option of choosing a coach

that offered seat belts.

14. As of 1998 model motorcoach manufacturers had the ability to provide an

effective warning in their vehicles to alert passengers to the increased risk

associated with the vehicle’s lack of seat belts.

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15. It was reasonable for coach manufacturers to provide seat belt warnings

in their coaches as of the 1998 model year.

[153] Conclusions 9 to 11 address the issue of whether passengers would have

used seatbelts had they been installed. The remaining conclusions address the

warning that the plaintiffs argue ought to have been given to alert passengers to the

dangers of not having seatbelts available.

[154] Although the question asked of Dr. Vigilante is problematic in that it asks him

to conclude on the ultimate issue—i.e., one of reasonableness—I find the above

conclusions admissible because they speak to the effectiveness of potential

warnings.

c)

Andrew Rentschler

[155] Dr. Rentschler is a biomechanical engineer. He participated in the

development and testing of seating and restraint systems and was familiar with the

theory and application of restraint systems and their ability to protect occupants from

inertial and impact loading, as well as the techniques and processes for evaluating

their performance characteristics.

[156] The plaintiffs sought to qualify Dr. Rentschler as an expert in the field of

accident reconstruction, mechanical and biomechanical engineering, human kinetics

analysis including injury mechanisms, and associated tolerances of the human body.

There is no issue with respect to that qualification.

[157] Some of the questions put to him go beyond his qualifications, but he did not

answer them, so I will not belabour that point here.

[158] With respect to seatbelts, by the time of argument, much of Dr. Rentschler’s

opinion became unnecessary because of the admission made by Prévost that I set

out above (para. 49). It conceded that the plaintiffs’ injuries would have been

lessened or eliminated by the use of seatbelts.

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[159] Dr. Rentschler prepared a rebuttal report with respect to two of Prévost’s

experts. He emphasized the limits of compartmentalization and said that three-point

belts provided better protection. He commented on Mr. Gardner’s reference to the

issue of possible low seatbelt usage rates in coaches pointing to the high usage

rates in the front seats of automobiles:

In 1998, approximately 69 per cent of front-scat occupants in passenger

vehicles in the United States used seat belts." This percentage had increased

from a level of 45 percent ten years earlier in 1988 and from a level of 14

percent in 1983. The efficacy of seat belts and the ability to educate motorists

and increased seat belt usage was clearly evident in 1998.

[160] Dr. Rentschler’s comments regarding seatbelts and compartmentalisation did

not address the balancing between different types of crashes. That probably would

have been beyond his expertise in any event.

d)

Gary Whitman

[161] Mr. Whitman is the director of crashworthiness for the engineering firm

ARCCA. He has a Bachelor of Science in Mechanical Engineering from Drexel

University and has done postgraduate work there as well.

[162] The plaintiffs sought to have Mr. Whitman qualified as an expert in occupant

crash protection systems, occupant crash restraint systems, crash safety and

survival, and emergency escape systems as it relates to restraint systems. The

questions posed to him were:

1. Does the design of the seat system in the subject bus pose a safety

risk to any or all passengers? If “yes”, please explain the risk and the

potential severity of harm that could arise from the risk.

2. Were design alternatives or countermeasures available to bus

manufacturers in the model year 1998 to reduce the risk of injury in a

rollover? If “yes”, please provide estimated costs for any solutions you

identify.

3. Does the fact that the windows on the bus were non-laminated or non-

acrylic glass, pose a safety risk to passengers in a rollover? If “yes”,

please explain the risk and the potential severity of harm that could

arise from the risk.

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[163] Mr. Whitman also prepared a rebuttal report. Although different questions

were put to him, they essentially covered the same ground as did his opinions in the

rebuttal report. My comments here apply to both reports as well as to his oral

evidence.

[164] Prévost submitted that Mr. Whitman went beyond his expertise in his

responses and submitted that he was an advocate or purported to proffer legal

opinions.

[165] To the extent that Mr. Whitman spoke of the ability of three-point belts to

restrain passengers, his opinion is non-controversial. However, when he went further

and said that the bus ought to have had seatbelts in it, his opinion became more

problematic for the following reasons:

a) As with some of the other plaintiffs’ experts, he did not consider the relative

risk of different crash types.

b) Mr. Whitman stated that there were “off-the-shelf systems” from Australia that

could have been adopted. But that is not the case. As stated previously,

Australia uses a body-on-frame system, and the seatbelt engineering is not

directly transferrable. Mr. Whitman was only aware of the differences between

the bus types “in very general terms”. It was, he stated, not his area of

expertise. He did not know if the Australian seats were compliant with the

North American standards that were developed later. He said: “All I know is

that Australia had a 20g standard and bus manufacturers were able to comply

with that.”

c) Mr. Whitman’s conclusions were—as with Mr. Vigilante—largely based on a

review of the documents which was selective and did not refer to concerns

expressed by the regulatory authorities with respect to the use of seatbelts.

He acknowledged it was an oversight not to have referred to the 2007 NHTSA

report Approach to Motor Coach Safety, although it was in his file.

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[166] With respect to Mr. Whitman’s conclusion that Prévost, the industry, and the

regulators were or ought to have been aware of the risk of rollovers, the Court is in

as good a position to interpret the documents as Mr. Whitman.

[167] I do not rule the report inadmissible, but the preceding goes to the weight of

Mr. Whitman’s opinion.

[168] Mr. Whitman did recognise the importance of testing, development of

standards, and NHTSA’s role in testing.

e)

James Hall

[169] Mr. Hall is a lawyer who was appointed a member of the NTSB in 1993 and

then as its chairman from 1994 to 2001. He was tendered to opine on transportation

safety, motor vehicle accident investigation, occupant crash protection restraint

systems, and crash safety and survival.

[170] With respect to seatbelts, Mr. Hall was asked to address the following

questions:

1. Does the design of the seat system in the subject bus pose a safety

risk to any or all passengers? If “yes” please explain the risk and the

potential severity of harm that could arise from the risk.

2. Were design alternatives or countermeasures available to bus

manufacturers in the model year 1998 to reduce the risk of injury in a

rollover?

[171] He summarised his opinions:

1. The design of the seat system in the 1998 Prévost commercial bus

(the "Bus") involved in the subject accident was deficient because it

did not provide occupant restraints or any other mechanism to prevent

the passengers on the Bus from being ejected or from being forcefully

thrown against rigid structures in the interior of the Bus.

2. Occupant restraint systems (e.g., seat belts) have been available to

the motor coach industry at least since the 1970s and the National

Transportation Safety Board had advocated their use since at least

1969.

[172] Mr. Hall also prepared a rebuttal report to Mr. Gardner’s opinion.

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[173] Prévost says that Mr. Hall is not qualified to give his opinions because he is a

lawyer with no engineering experience, and that his opinion is in effect argument.

[174] For the following reasons, I find Mr. Hall’s opinions to be of little assistance

and it is therefore unnecessary for me to make a formal determination on

admissibility.

[175] In answering question 1, Mr. Hall relied solely on NTSB recommendations, as

opposed to any expertise of his own. He did not refer to NHTSA responses or its

reports at all.

[176] His response to the second question was again based on NTSB accident

reports and reference to European and Australian standards. He did not address the

translatability of those standards to US buses. He did not refer to NHTSA’s work, or

to that of Transport Canada. Mr. Hall did not proffer any technical opinions to aid in

interpreting the documents, nor would he have been qualified to do so.

[177] Mr. Hall acknowledged that his opinion was based on some

recommendations made in individual NTSB accident investigation reports and that

between 1973 and 1988, the NTSB did not make any formal recommendations with

respect to putting seatbelts in buses.

[178] A factual point that is admissible, is that Mr. Hall said that while the NTSB had

the ability to issue urgent communications on safety issues if immediate attention

was required, during his tenure, it did not do so.

f)

Amrit Toor

[179] Dr. Toor is an engineer who was tendered as an expert in accident

reconstruction and vehicle occupant kinematics.

[180] With respect to seatbelts, he was asked whether seatbelts would have been

effective in preventing or reducing contact-related injuries. Prévost did not take any

issue with respect to his report and his findings were non-controversial.

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[181] His conclusion with respect to seatbelts was:

The availability and use of seat belts by the bus occupants would have limited

the occupant motion and provided benefit in reducing occupant contacts and

movement. Thus, occupant contact related injuries would have also likely

been reduced and/or eliminated with the use of seat belts. Seat belt usage

would have likely also prevented full occupant ejection from the bus.

Once again, given the admission by Prévost (a well as the balance of the evidence),

this conclusion is not controversial.

g)

Gregory Cole

[182] Mr. Cole authored a report titled Passenger Bus and Crash Safety in

Australia.

[183] Mr. Cole said he managed bus and transportation companies in Australia for

35 years, although it became apparent that this was closer to 10-12 years. He has a

Certificate of Transport Management from Sydney University Institute of Transport

Management and a Certificate of Bus Safety and Risk Management from Monash

University.

[184] Mr. Cole was asked to opine on the following:

1. Does the design of the seat system in the Bus pose a safety risk to any or

all passengers? If “yes”, please explain the risk and the potential severity

of harm that could arise from the risk.

2. Were design alternatives or countermeasures available to bus

manufacturers in the model year 1998 to reduce the risk of injury in a

rollover? If “yes”, please provide estimated costs for any solutions you

identify.

3. Were design alternatives or countermeasures available to bus

manufacturers in the model year 1998 to reduce the risk of driver

inattentiveness or fatigue? If “yes”, please provide estimated costs for

any solutions you identify.

4. What policies or protocols might a typical bus tour operator have in place

to ensure the safety of customers?

5. What schedule of inspections and enforcement might a typical bus tour

operator have in order to ensure that policies and protocols in place are

followed and adhered to?

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6. What training and re-training might a typical bus tour operator have in

place to ensure the quality of drivers and tour operators?

7. What sorts of warnings about the dangers of inter-city bus travel might a

typical bus tour operator provide to customers before allowing them to

embark on an inter-city bus?

8. Are there additional risk factors to consider and additional policies or

protocols if a typical bus tour operator is subcontracting out parts of the

bus tour, such as the bus and bus driver?

Questions one and two deal with the liability of Prévost. The remainder of the

questions deal with the liability of the other defendants.

[185] All of the defendants objected to the admissibility of Mr. Cole’s report. A

revised report was submitted. The defendants maintained their objections. I ruled the

report inadmissible with reasons to follow, which I set out below.

[186] The plaintiffs then sought to call Mr. Cole as a fact witness, which prompted

another series of objections. Before hearing those objections, and in place of calling

Mr. Cole as a fact witness, the following facts were agreed to by the parties:

1. Since July 1, 1994 lap and shoulder seat belts have been mandatory

on all new intercity motor coaches in Australia.

2. Lap and shoulder seat belted passenger coach seats have been

commercially available for purchase in Australia since July 1, 1994.

3. In Australia, based on Mr. Cole's experience, pre-departure warnings

are routinely given to passengers in intercity motor coaches by the

coach operator at which time passengers are advised to wear their

seatbelts and warned that the law requires that they wear their

seatbelts.

[187] My reasons for ruling Mr. Cole’s report inadmissible can be succinctly stated:

a) Mr. Cole agreed in cross-examination that the majority of his work experience

since 1995 was in retail travel or ventures other than management of

passenger transportation companies.

b) Questions one and two are engineering questions which Mr. Cole has no

expertise to address.

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c) His opinions are based on the regulatory regimes in the Australian states of

New South Wales and Victoria. Mr. Coles’ only experience is in Australia. He

has no expertise with which to provide opinions that are of assistance to

Canada.

d) Beyond what was distilled into the agreed facts, Mr. Cole had nothing

admissible or relevant to offer.

4.

Prévost’s experts dealing with seatbelts

a) Gray Beauchamp

[188] Mr. Beauchamp is an engineer in the United States with experience in traffic

accident reconstruction and vehicle dynamics. He was tendered as an expert in

vehicle accident reconstruction, vehicle dynamics, vehicle handling and driver

response.

[189] Mr. Beauchamp described the dynamics of the accident. He said Mr. Spittal’s

aggressive steering to the right caused the bus to roll over. There was no challenge

to this part of his evidence.

[190] Mr. Beauchamp was asked to provide opinions on whether the accident

would have been prevented by electronic stability control or a lane departure

warning system, but those issues were not advanced by the plaintiffs.

[191] He also opined on the forces exerted on the glass. I will deal that later when I

come to the glass issue.

b)

Darrin Richards

[192] Mr. Richards is an engineer who has worked in the field of biomechanical

engineering since 1998. He has undergraduate degrees in mathematics and

mechanical engineering, and a masters degree in biomechanical engineering. He

was qualified to provide opinion evidence on accident reconstruction, vehicle

dynamics, occupant kinematics, injury biomechanics, occupant protection, occupant

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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glazing interaction, and seatbelt effectiveness. His analysis was based in part on Mr.

Beauchamp’s vehicle dynamics calculations.

[193] Mr. Richards inspected the bus three times. On one of those occasions a

three-dimensional laser scan was done of the bus by another engineering firm under

Mr. Richard’s watch.

[194] Mr. Richards was asked to provide his opinion “with respect to injury

biomechanics including analysis of the vehicle dynamics and occupant kinematics

during the sequence of the accident, as well as the potential effects of seat belts and

laminated glazing, had either been present.”

[195] Mr. Richards referred to the literature on compartmentalization and noted that

the spacing and height of the seat-backs in the bus was consistent with that

principle. He also noted that the seat-backs were deformed after the accident, but

did not break off. This was indicative of them having absorbed energy from the

impact with the passengers, again consistent with compartmentalisation. He did note

that the seat-backs had firm plastic grip handles and this detracted from the

protection of the deformable seat-backs. He noted these would have been aids for

more elderly passengers to get in and out of their seats

[196] Mr. Richards acknowledged the limited effectiveness of compartmentalization

in a roll-over compared to three-point belts:

While compartmentalization is highly effective at protecting occupants in

frontal and rear collisions, it is far less effective for rollover type collisions.

The 2002 Transport Canada Study indicated that the majority of severe and

fatal injuries were the result of rollover events and ejections. Lap belts have

been shown to have undesirable effects by increasing neck loads in frontal

collisions (Transport Canada, 2017). Three-point restraints are generally an

effective countermeasure to ejection and also effective at mitigating injuries

during frontal collisions. However, installation of 3-point belts requires stiffer

seatbacks to support belt loads, which runs counter to the principles of

compartmentalization. In other words, if the belts are not used, there is

greater risk to unbelted occupants. Improper belt use can also have a

negative impact on overall safety. Thus 3-point seat belts are effective when

worn properly, but can have negative effects when not worn or when worn

improperly.

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[197] With specific reference to the plaintiffs, Ms. Ding and Ms. Pan, he said that it

is likely that three-point belts would have prevented their most significant injuries,

which occurred as a result of contact with the ground.

[198] Mr. Richards reviewed the literature with respect to seat-belt usage rates in

various countries. By way of example, the Australian studies he noted showed

usage rates from a low of 20 percent to as high as 90 percent. One study was of

delegates to several crash conferences on crash safety, and noted a usage rate of

under 50 percent. A German study reported a usage rate of 25 percent.

c)

William Gardner

[199] I referred to Mr. Gardner in the chronological narrative regarding government

and industry consideration of the use of seatbelts. As I noted, he was the head of

Crashworthiness at Transport Canada for 18 years prior to his retirement in 2006

and was responsible for bus safety. Prior to that he was the regulatory safety

engineer responsible for bus safety.

[200] Mr. Gardner provided two expert reports and I recognised him as qualified to

provide opinion evidence in the fields of motor vehicle safety design, testing, safety

regulation crashworthiness, and collision investigation and analysis. That said, as

may be apparent from the narrative, he was more often a fact witness. I included

much of that factual evidence in the chronological narrative and will not repeat it

here.

[201] Mr. Gardner was asked why Transport Canada had not recommended the

installation of seatbelts by 1998. He stated that significantly more information was

required and could only be obtained from dynamic crash testing which had not been

done.

[202] Mr. Gardner testified that he was well aware of the seatbelt regulations in

Australia and Europe. However, it was not transposable to Canada without further

testing. He stated:

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I think the most general conclusion would be that neither ECE 80 nor ADR 68

could be just accepted into the Canadian regulations. They were -- neither

one of them were suitable for our type of sled testing, and neither one of them

-- and we weren't really able to determine from our testing whether either one

of them was completely appropriate or not.

We would have had to do some more of our own testing. Ignoring the

requirements of ADR 68 and ECE 80, we would have had establish our own

criteria based on a sled test pulse that we felt was correct and that was

achievable on our sled.

So a lot of work would have to be done before we could actually reapply any

of these standards.

[203] In cross-examination, Mr. Gardiner was taken to several individual crashes

and it was put to him that these crashes should have led to the conclusion that

seatbelts ought to have been required in motorcoaches. Mr. Gardner responded that

conclusions could not be drawn from individual accidents and comments made after

their investigations could not necessarily be accepted. The proper methodology is to

draw conclusions only by looking at multiple accidents, which is what Transport

Canada did. Referring to the accident at Les Éboulements in October 1997 (a

rollover crash of a Prévost bus involving multiple fatalities), he said:

So from the point of view of regulating what goes on the bus, I would never

accept just the comments from one collision. I would want the comments from

a lot of collisions, which is what I did do.

And it's the same situation with school bus. Every time when there's a school

bus collision, there were numerous people saying there should be seatbelts

on the school bus, but that did not sway me from looking at the bigger picture

where in a collision where there was intrusion in the side of the school bus

and then three children died, that doesn't mean that a seatbelt would have

been any use to them at all.

So it depends on a lot more than any one collision. This was an enormous

collision, the largest in Canadian history, and so I couldn't -- I couldn't

suggest that it would be wise to make all buses so that everyone would live

on that bus.

[204] Mr. Gardner denied that there was any lobbying or effort by Prévost to delay

regulation.

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5. Analysis: seat belt issue

Page 51

[205] Product liability is negligence-based and is not a tort of strict liability. To

succeed, a plaintiff must show:

a) the defendant owed a legal duty of care to the plaintiff in respect of the

product;

b) the product was defective or dangerous;

c) the defendant was negligent in failing to meet the requisite standard of care;

d) the breach of the standard of care caused the plaintiff's injuries; and

e) the plaintiff suffered damage because of the defendant's negligence.

Harrington v. Dow Corning Corp., 2000 BCCA 605 at para. 122.

[206] As in any case of negligence, the analysis hinges on reasonableness. I think

it fair to say—as Prévost has argued—that the question here is not whether Prévost

was right or wrong in not installing seatbelts in 1998. Rather, the issue is whether it

acted reasonably. As stated in Phillips v. Ford Motor Motor Co. of Canada, [1971] 2

O.R. 637, 1971 CanLII 389 (O.N.C.A.) at para. 49:

While the scope of M'Alister (or Donoghue) v. Stevenson,

[1932] A.C. 562, has been greatly extended and is no longer

limited to articles of food and drink, but has been applied to

underwear, tombstones, motor-cars, elevators and hair dye,

and more recently to house property and articles installed

therein, our Courts do not, in product liability cases, impose

upon manufacturers, distributors or repairers, as is done in

some of the States of the American union, what is virtually

strict liability. The standard of care exacted of them under our

law is the duty to use reasonable care in the circumstances

and nothing more.

[207] A useful statement of the centrality of reasonableness is the following from

Daishowa-Marubeni International Ltd. v. Toshiba International Corporation, 2010

ABQB 627:

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[38] The onus is on the plaintiff to show that the item as designed was not

reasonably safe as there was a substantial likelihood of harm and it was

feasible to design the product in a safer manner. The duty of reasonable care

in design rests on the principle that the manufacturer should use reasonable

care to eliminate any unreasonable risk or foreseeable harm. Tabrizi v.

Whallon Machine Inc. (1996), 29 C.C.L.T. (2d) 176 (B.C.S.C.) quoting

Rentway Canada Ltd. v. Laidlaw Transport Ltd. The requirement is not the

safest design possible, but rather one that is reasonable in the

circumstances.

. . .

[40] The law does not impose strict liability on manufacturers, the onus does

not require that they produce items that are accident proof or incapable of

doing harm. The manufacturer is not the insurer of anyone who suffers injury

while using or misusing a product.

[Emphasis added.]

[208] There is no debate that Prévost owed a duty of care to the plaintiffs to

exercise reasonable care not to manufacture a motor coach with a design defect or

one that was unreasonably dangerous. The issue is whether that duty has been

breached.

[209] The issues of regulatory and industry standards are central to this case.

Because of the interaction of the industry and the government regulators, they are

factually almost one and the same.

[210] Compliance with regulatory standards does not give a manufacturer a “free

pass” but it is a relevant factor in the reasonableness analysis and sometimes a very

weighty one. As stated by Major J. in Ryan v. Victoria (City), [1999] 1 S.C.R. 201

[Ryan]:

29

Legislative standards are relevant to the common law standard of

care, but the two are not necessarily co-extensive. The fact that a statute

prescribes or prohibits certain activities may constitute evidence of

reasonable conduct in a given situation, but it does not extinguish the

underlying obligation of reasonableness. See R. in right of Canada v.

Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205. Thus, a statutory breach

does not automatically give rise to civil liability; it is merely some evidence of

negligence. See, e.g., Stewart v. Pettie, [1995] 1 S.C.R. 131, at para. 36,

and Saskatchewan Wheat Pool, at p. 225. By the same token, mere

compliance with a statute does not, in and of itself, preclude a finding of civil

liability. . . . Statutory standards can, however, be highly relevant to the

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assessment of reasonable conduct in a particular case, and in fact may

render reasonable an act or omission which would otherwise appear to be

negligent. This allows courts to consider the legislative framework in which

people and companies must operate, while at the same time recognizing that

one cannot avoid the underlying obligation of reasonable care simply by

discharging statutory duties.

[Emphasis added.]

[211] Similarly, industry standards are relevant, but not determinative. As the

Ontario Court of Appeal noted in Zsoldos v. Canadian Pacific Railway, 2009 ONCA

55 at para. 43, conformity with industry practice does not protect a defendant from

negligence where the practice itself is negligent.

[212] It goes without saying, but I will say it nonetheless: the assessment of this

issue must be based on the state of affairs at the time the coach was manufactured.

[213] To summarise the crucial aspects of the evidence I set out above:

a.

Until 2020, there was no requirement in Canada to manufacture motor

coaches with seatbelts. At the time the coach was built in 1998, the

advisability of seatbelts in motor coaches was not a simple matter for

the regulators or the industry. There was a weighing of the risks arising

from different types of accidents, seatbelt usage rates, and different

bus designs, among other considerations.

b.

It was not a simple matter of installing seatbelts into an existing bus

design without any further engineering. As stated by Mr. Osterman of

the NTSB at the April 30, 2002 joint NHTSB-Transport Canada

meeting:

Although seat belts may be the right solution, you have to

redesign the compartment with seat belts engineered into the

equation rather than simply applying them to the existing seat

that was never designed for belts.³

³Mr. Osterman was not a witness at this trial, but his statement amounts to a succinct summary of

the evidence from several trial witnesses.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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c.

Seatbelts had been discussed for many years prior to the manufacture

of the coach and prior to the accident. It was recognised that ejections

could take place in the event of a roll-over, but rollovers were

considered to be, and were, extremely rare. In 1998, rollovers with

fatalities constituted .017% of coach crashes in the U.S.

d.

e.

As late as 1998 (the year the subject coach was manufactured),

Transport Canada noted in its Review of Bus Safety Issues (above,

para. 67) that “seat belts would be of potential benefit in only a very

few cases”.

Well after the coach was manufactured, seatbelts remained under

consideration as an open issue. As late as 2007, NHTSA (above, para.

102) noted that:

[T]he fundamental information that would be necessary to

establish adequate performance requirement for seat belts on

motorcoaches does not exist.

f.

No North American bus manufacturer had the capability to do the

sophisticated crash testing using fully instrumented dummies to

develop or implement a proper seatbelt standard. NHTSA did not

conduct its crash test until 2007. Following that, Prévost was able to

finalise its design for seatbelt implementation and the regulators were

able to establish the seatbelt requirement with the appropriate

standard.

g.

No North American seat manufacturers offered seatbelts until after

2006.

[214] The evidence adduced by Prévost clearly shows that the industry and

regulatory standard was not to have seatbelts in motor coaches. The plaintiffs have

mounted no real challenge to that. Rather the plaintiffs’ position—without clearly

saying as much—is that both the regulations and industry standards were negligent.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

Page 55

However, the plaintiffs’ expert evidence does not back that up, as is apparent from

my review of that evidence. I comment further on this at para. 222 below.

[215] Moreover, the plaintiffs have not adduced evidence as to the requisite

standard of care. The plaintiffs say that while expert evidence is necessary to prove

the standard of care in a professional negligence cases (as set out in ter Neuzen v.

Korn, [1995] 3 S.C.R. 674), no such evidence is necessary in other cases. They

point to Johansson v. General Motors of Canada Ltd, 2012 NSCA 120 which was

applied in Hans v. Volvo Trucks North America Inc., 2016 BCSC 1155 (aff’d 2018

BCCA 410).

[216] In Johansson, the plaintiff’s car left the road because of a steering defect that

was the subject of a recall notice required by NHTSA: the lower pinion bearing in the

power steering gear could separate. The plaintiff did not adduce evidence as to the

standard of care. The Nova Scotia Court of Appeal held that the trial judge was

wrong in granting a non-suit on that basis. The court reasoned:

113

The leading authority on the need for expert evidence in professional

negligence cases is ter Neuzen v. Korn, [1995] 3 S.C.R. 674 (S.C.C.), a

negligence claim against an obstetrician and gynaecologist. The plaintiff

contracted HIV from the defendant’s procedure for artificial insemination. The

procedure occurred in the early 1980s, before the first published case of HIV

transmission from artificial insemination. There was expert evidence that the

defendant’s approach complied with gynaecological practices in Canada at

the time. The jury nonetheless found the defendant negligent. There was no

non-suit. The Court of Appeal overturned the verdict and ordered a new trial.

The Supreme Court of Canada dismissed the appeal. The case turned on

what knowledge of HIV risk was available in the profession at the time of the

procedure. Justice Sopinka said:

44 As was observed in Lapointe, courts should not involve themselves

in resolving scientific disputes which require the expertise of the

profession. Courts and juries do not have the necessary expertise to

assess technical matters relating to the diagnosis or treatment of

patients. Where a common and accepted course of conduct is

adopted based on the specialized and technical expertise of

professionals, it is unsatisfactory for a finder of fact to conclude that

such a standard was inherently negligent. On the other hand, matters

falling within the ordinary common sense of juries can be judged to be

negligent. For example, where there are obvious existing alternatives

which any reasonable person would utilize in order to avoid a risk, one

could conclude that the failure to adopt such measures is negligent

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notwithstanding that it is the prevailing practice among practitioners in

the area.

114

I disagree with the judge that the principles respecting expert

evidence in professional negligence cases support a non-suit of Mrs.

Johansson’s claim.

115

The standard of care for each professional is defined with reference to

his or her profession. Linden and Feldthusen, Canadian Tort Law, (9th ed.

2011), p 165, under the heading “Professional Negligence”, states:

In all these cases, the courts are balancing the interests of the clients

or patients in receiving skilled service as well as the interests of

professional people in a certain degree of autonomy in their dealings

with the community. As always, an uneasy compromise has been

reached.

Every recognized professional group has its own individual standard

— a standard to which all the members of the profession must

conform. Chief Justice McLachlin, for example, has asserted that, in

conducting an investigation, the standard of care required of the

police is that of a “reasonable police officer in all the circumstances”.

Surveyors, for an example, must “exercise a reasonable amount of

care and a reasonably competent degree of skill and knowledge”. A

chiropractor’s diagnosis, for another example, must be “sufficient by

chiropractic standards”. A similar obligation, which is said by some to

be based on contract, rests on engineers, architects, accountants and

others.

It follows that evidence related to the standards of the defendant’s particular

profession is in order. In ter Neuzen v. Korn, for example, the case pivoted on

the awareness, in the gynaecological profession, of HIV risk in the early

1980s, a topic tailored for expert evidence.

116

The same cannot be said in this case. GMC’s standard is to use

reasonable care in the circumstances. From Justice Major’s comments in

Ryan, those circumstances may, but do not necessarily, include industry

standards. Expert evidence of industry standards would be relevant, but is

not legally mandatory for a claim such as Mrs. Johansson’s.

[Emphasis added.]

[217] Hans is another case where expert evidence as to the standard of care was

not necessary. In that case, the plaintiff’s truck lost power when he was driving it on

a highway. Davies J. found that was caused by an improperly tightened nut when

the truck was manufactured. Davies J. held that expert evidence as to standard of

care was not required.

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[218] Those cases are considerably different than the one at bar. The holding in

Hans was that expert evidence was not required to establish that a reasonable

manufacturer should ensure that the nuts in its trucks are tightened. This case is

more complex. Moreover, in Hans and Johansson—unlike here—the defendants did

not adduce evidence of industry standard or practice.

[219] It will be seen from the authorities referred to in the above quote from

Johansson that the courts defer to industry standards where the practice is the result

of a balancing of factors and the matter is technical. The point is also made (in the

negative) by L.G. Theall et al, in Product Liability: Canadian Law and Practice

(Toronto: Thompson Reuters, 2021) (loose-leaf updated 2021, release 1), s. 2.18:

Evidence of custom will receive less weight where assessing the

manufacturing method or standard does not require technical knowledge, and

the trier of fact can therefore determine what was reasonable. Moreover,

evidence that safer methods existed can diminish the probity of industry

practice.

[220] Apart from anything else, the multiple studies and considerations of the issue

of seatbelts by regulators in both Canada and the United States show that the matter

here is a technical one. I need not to go as far as to say that it is legally necessary

for the plaintiffs to adduce expert evidence of the required standard of care, nor does

Prévost so argue. However, the technical nature of this matter is something that

must be weighed. In the face of the evidence, it is facile to say that the installation of

seatbelts was an obvious alternative that any reasonable bus manufacturer ought to

have adopted.

[221] For me to conclude that Prévost was negligent in not installing seatbelts, I

would have to conclude that NHTSA, Transport Canada, and other bus

manufacturers in North America were equally negligent. That is not something to be

done in the absence of cogent evidence: Piché v. Lecours Lumber Co. (1993), 41

A.C.W.S. (3d) 653 at para. 466 (Ont. Ct. (Gen. Div.)).

[222] In order to conclude that Prévost, the industry and the regulators were

negligent, I would have to balance at least the following factors:

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 The likelihood of rollover crashes;

 The likelihood of users wearing seatbelts; and

 The likelihood of non-seatbelt users being more severely injured because of

the stiffening of the seats requited by seatbelt installations.

The plaintiffs’ expert evidence—to the extent it is admissible—does not assist in this

regard. The totality of that evidence amounts to saying that seatbelts could have

provided better protection in a roll-over. But that point is not in dispute. As I said

several times, the plaintiffs’ experts did not consider the matter in the larger context.

[223] I will add that the relationship between the industry and the regulators was not

a “nudge-nudge-wink-wink” situation where industry and regulators ignore or defer

consideration of known risks. Nor is it a case such as those against the tobacco

industry, where the manufacturers were found to have lied and obfuscated to the

regulators and the public in a concerted manner: Létourneau c. JTI-MacDonald

Corp., 2015 QCCS 2382, aff’d 2019 QCCA 358 and United States v. Philip Morris

USA Inc., 9F. Supp. 2d 1 (D.D.C. 2006).

[224] The plaintiffs point to the European and Australian standards and argue that

Prévost could have simply adopted them. However, the regulators did not consider

the testing to have been adequate. Moreover, the tests were for a different bus

construction using a chassis-on-frame construction. In fact, the European standard

was found to be too low, being 6.6g compared to the 20g that was eventually

adopted.

[225] The plaintiffs provided a timeline of bus accidents involving rollovers to

establish that Prévost knew of the risk of rollovers and ejection. But once again, in

the circumstances of this case, it is not for the court to analyse a long list of

accidents—adduced only through public reports without further analysis—and reach

a contrary determination than the regulators and the industry. Mr. Ridenour (an

expert called by Prévost) provided telling evidence in cross-examination on this

point. He stated that the risk of an event happening is a key to the safety design

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process. Regarding assessing risk, he noted that it was insufficient to look at a

database and count the number of accidents; rather, the number of accidents has to

be compared to the number of total passenger miles driven.

[226] The plaintiffs also point to a 2001 rollover test done by Volvo, presumably in

Europe. However, that was some three years after the subject coach was

manufactured. At the time of design and manufacture of the H3-45, Mr. Bolduc said

there was no engineering collaboration between Volvo and Prévost.

[227] I conclude that Prévost acted reasonably in its design and manufacture of the

coach without seatbelts. It followed industry and regulatory standards. The plaintiffs

have not shown that those standards were negligent or unreasonable or that another

industry standard existed in North America.

[228] Therefore, Prévost was not negligent in manufacturing the coach in 1998

without seatbelts. Nor did the lack of seatbelts make the bus unreasonably safe or

defective.

C.

Was Prévost negligent in not recalling the coach when the retrofit was

available?

[229] Ms. Ding summarised her position regarding the retrofit:

After the Bus was designed and manufactured but before the collision,

Prevost had an ongoing duty to repair the design defect by developing a

suitable three-point seatbelt system and taking steps to ensure that seatbelts

were retrofit onto the Bus to protect passengers from harm of ejection or

partial ejection in a rollover collision. Prevost breached the standard of care

by failing to ensure that the Bus was retrofit[ted] with seatbelts prior to the

collision.

[230] There are several answers to this allegation. First, I have found that the bus

was not negligently designed or defective.

[231] Second, in terms of standard of care, the vast majority of the current bus fleet

in Canada ran without seat belts. No other coach manufacturer, operator or

regulator has concluded that retrofits were required. In other words, the bus without

belts was not and even now is not considered to be a defective or dangerous

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product. Nor did the regulators consider it to be dangerous: even when the

mandatory seat belt regulations came into place there was no requirement for

retrofitting. In fact, as I stated above (para. 111), in March 2016, NHTSA confirmed

an earlier position against requiring the retrofitting of seatbelts.

[232] The retrofit was akin to a safety enhancement that is common in the car

industry. The fact that safety improvements are made does not mean that the

vehicle was defective to begin with or that the enhancements need be retrofitted at a

manufacturer’s cost.

[233] I conclude that Prévost was not under a duty to recall the bus for the

retrofitting of seatbelts.

D.

Was Prévost negligent in using tempered glass instead of laminate

glass in the passenger windows?

[234] At the start of the trial, the issue of glass shared centre stage with seatbelts.

The plaintiffs alleged that the use of tempered glass in the passenger windows—as

opposed to laminate glass—enhanced the risk of ejection in a rollover, especially

given the lack of seatbelts.

[235] By the time of the argument, the glass issue exited the stage for the wings:

counsel for Ms. Ding acknowledged that the case “was about seatbelts” because it

could not be shown that any type of glass would have retained the passengers who

were ejected. I think that acknowledgement was correctly made, as I will detail

below. But because of that acknowledgement, my reasons will be brief.

1.

Background facts

[236] First, a very basic description of the relevant glass (or glazing) types. Non-

treated glass is known as annealed glass. Tempered glass is strengthened

annealed glass. Laminate glass has at least two layers of glass bonded to a middle

sheet of plastic material. Different types of glass can be used in the laminated

product. Laminate and tempered glass break differently. Tempered glass breaks into

little pieces or kernels. Laminate breaks into shards but the shards are held together

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by the inner plastic layer. I set this out in more detail below when I deal with the

evidence of Mr. Ridenour, a glazing expert called by the defendant.

[237] Provided the glass meets the required standard, both laminate and tempered

glass are allowed for passenger windows in Canada and the United States.

Windshields are required to have laminated glass.

[238] Prior to 1997, Prevost had used laminate glass in aluminium frames. In 1998,

after a research and design project, Prévost switched to tempered glass in frameless

windows. The frameless windows gave passengers a better view, a considerable

advantage for a tour bus.

[239] The proposed change was not without initial debate within the company. At a

March 1996 meeting, one of the former owners was against the move and

expressed concern that one serious accident could be detrimental to the company

and that the transition could be used against it in litigation. At the meeting, Mr.

Bolduc expressed his view that Prévost’s decision should be guided by the main

goals of Volvo: quality, environment, and safety. The meeting ended with a decision

to do further research.

[240] After further study, including discussions with glass suppliers, it was

determined that laminate glass did not meet the mechanical strength requirements

of the frameless design: it broke too easily under the stress transmitted to it by the

coach structure. It was decided that tempered glass should be used.

[241] The decision was influenced, in part, by a peer-reviewed paper by a

preeminent glazing expert, Professor Lawrence Patrick, who was a professor at

Wayne State University, a leading university for vehicle design in Detroit. One of the

other experts who testified at the trial, Mr. Richards, referred to Professor Patrick as

“one of the grandfathers of biomechanics” whose papers are frequently referred to

by other engineers and in graduate courses. Another expert, Mr. Ridenour, said that

Professor Patrick was a leading pioneer in human impact tolerance and safety

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research and that his work formed the basis for many current automotive safety

standards and features.

[242] In his paper, Professor Patrick analysed the comparative benefits of

laminated and tempered glass in several different combinations and concluded that

tempered glass was the preferred choice. He found that the greater strength of

tempered glass prevented some ejections and avoided the laceration injuries that

could take place with laminate glass. He also noted the savings in weight, which

resulted in the benefit of a lower centre of gravity and therefore more stable vehicle.

The decreased weight also yields better gas mileage.⁴

[243] Although the person at Prévost who consulted Professor Patrick was not a

witness at the trial, records from a June 1997 project committee meeting notes that

the glass project and proposed glass type were presented to him “and accepted”.

2.

The plaintiffs’ expert witnesses

[244] Several of the plaintiffs’ experts gave opinions on both the seatbelt and glass

issues. Here I deal only with the latter issue.

a)

Gregory Sypher

[245] Mr. Sypher’s qualifications were set out above.

[246] With respect to glazing, he was asked the following two questions:

a) Does the fact that the windows on the Bus were tempered glass, and

not laminated, pose a safety risk to passengers in a rollover? If “yes”,

please explain the risk and the potential severity of harm that could

arise from the risk.

b) Would laminated windows installed on the Bus at the time of the

Collision have reduced the likelihood of injuries to the plaintiffs?

[247] Mr. Sypher’s answer to both questions was that tempered glass increased the

risk of injury.

⁴L.M. Patrick, “Glazing for Motor Vehicles”, presented at the 39^thStapp Car Crash Conference, Nov.

1995.

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[248] I concluded above that Mr. Sypher did not have the qualifications to opine on

the questions put to him with respect to seatbelts. What I said there applies equally

to glazing and his opinions are inadmissible.

[249] In any event, little weight could be given to his conclusions. He did no

analysis of the force on the windows or comparison to what would have occurred

with the use of laminate glass. His opinion was, in essence, generic.

[250] Further, he acknowledged in cross-examination that he was asked to assume

that tempered glass was not a proper form of glazing.

b)

Dr. Toor

[251] I set out Dr. Toor’s qualifications above. Prévost did not challenge them.

[252] With respect to glazing, he was asked “if the side windows had remained

intact, whether or not the intact windows would have benefitted the occupants by

preventing or reducing injuries.”

[253] Dr. Toor’s response was that if the windows had remained intact, they would

have operated as a barrier preventing ejection or contact with between the

passengers and the ground, thereby affording injury reduction benefits. That

conclusion is not controversial. The issue is the comparison between laminate and

tempered glass, a question which Dr. Toor does not entertain, nor would that have

been within his expertise.

c)

Dr. Rentschler

[254] I referred to Dr. Rentschler above with respect to seatbelts.

[255] With respect to glazing, he was asked:

Does the fact that the windows on the Bus were tempered glass and not

laminated, pose a safety risk to passengers in a rollover? If “yes”, please

explain the risk and the potential severity of harm that could arise from the

risk.

[256] His answers were:

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(a)

(b)

The combination of lap-shoulder seat belts and the use of laminated

glass in the side windows of the subject bus would have mitigated

and/or prevented significant injuries to the passengers.

The presence of laminated glass that would not shatter or fail during

the rollover would prevent occupant impact and interaction with the

roadway surface and glass fragments, and would eliminate partial or

full ejection from the bus by the side windows.

[257] Prévost objects to these questions and answers because it says Dr.

Rentschler was not qualified to opine on them. I agree: Dr. Rentschler is not a

glazing expert.

[258] Moreover, in cross-examination, he contradicted this opinion and said he was

not offering an opinion on what kind of glass would or would not have survived the

accident and he was not making any comparison between laminate and tempered

glass.

d)

Mr. Whitman

[259] I referred to Mr. Whitman earlier in the section dealing with seatbelts.

[260] With respect to glazing, he was asked:

Does the fact that the windows on the bus were non-laminated or non-acrylic

glass, pose a safety risk to passengers in a rollover? If “yes”, please explain

the risk and the potential severity of harm that could arise from the risk.

[261] The essence of his response is captured in the following paragraph of his

report:

Had the subject bus incorporated well secured advanced glazing, such as

laminated glass rather than the tempered glass in its side windows, the glass

probably would have remained in place and provided a protective barrier

between the ground and the occupants. As a result, no occupants would

have been fully or partially ejected or contacted the ground.

[262] Once again, I agree with Prévost that this goes beyond Mr. Whitman’s

expertise. Moreover, the opinion is provided with no analysis whatsoever; it is a

“throw-away” paragraph in a report that otherwise deals with seatbelts.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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[263] The opinion regarding glazing is therefore inadmissible or alternatively is to

be given no weight.

e)

Donald Phillips

[264] Mr. Philips was tendered as an expert to provide opinion evidence:

[I]n the area of vehicle accident reconstruction, vehicle dynamics and crash

sensing and occupant restraint systems, engineering specifications and

designing for safety, and motor vehicle glazing materials including laminated

and tempered glass.

[265] He was asked to answer the following:

a) Would laminated glass installed in the side window positions of the

Prevost Bus have lessened the risk of full or partial ejection in this ¼

roll and slide to a stop? If yes, explain why the risk of full or partial

ejection would have been lessened.

b) If laminated glass was installed in the side window positions as

opposed to tempered glass in the Prevost Bus, would laminated glass

have posed an increased risk for laceration? If “no”, explain the

reasoning why there wasn’t an increased risk of laceration potential of

laminated glazing over tempered glass.

c) Was laminated glass available to be installed at the time of

manufacture or the Prevost Bus? If “yes”, explain the reasoning why

and what would be the difference in cost?

[266] The nub of his opinion is the response to the first question, which is the key

question with respect to the glass issue. His reply to that question was:

Yes, laminated glass in window openings prevents ejections.

[267] Mr. Phillips has a B.Sc. from Lehigh University in mechanical engineering. He

also has an MBA in computer data management, but that has nothing to do with his

mandate in this case. He took three five-day courses related to glazing over several

years.

[268] After his B.Sc., Mr. Phillips worked at Colgate Palmolive as a production

foreman. He then joined Breed Automotive Group in 1986, where he worked on air

bags and sensors for GM and Ford vehicles. He left Breed in 1990 and since then

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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worked as a consultant for litigation and insurance matters. Mr. Phillips

acknowledged in cross-examination that courts have refused to admit his reports

with respect to glazing issues on three prior occasions and four times for other

issues.

[269] Prévost argues that Mr. Phillips does not have the expertise to answer the

questions posed to him. It further argues that his evidence is inadmissible on the

basis of irrelevance given that it is unrelated to the subject bus and based on

experiments he has carried out on other vehicles. Alternatively, no weight should be

given to his opinion.

[270] Apart from his qualifications, there are several matters that lead me conclude

little or no weight should be given to his opinion, even if admissible.

[271] In cross-examination, Mr. Phillips agreed that his opinion that “laminated

glass in windows prevents ejections” was generic. In other words, he did no specific

testing or analysis to try to replicate what happened in the crash. Mr. Phillips did not

provide any load calculations or other detailed analysis of the load factors on the

glass in the current crash.

[272] It will be noted Mr. Phillips’ answer to the first question, which I set out above,

is not tied to the subject crash. Mr. Phillips acknowledged that his opinion was not

that laminate glass will contain the occupants in every crash, but only that it provides

better protection. Here the central issue is whether the occupants in this accident

would have been ejected if laminate glass had been used. An opinion that laminate

glass generally provides better protection is of little, if any, assistance.

[273] The point is also illustrated by the experiments Mr. Phillips relied on in

reaching his conclusion, all of which he did for prior projects. Prime among these

was a test in which he removed a car door with a laminate side window, laid it on its

side, loaded a 25-kg dog food bag on top of the window, and dragged the door on

the ground using a rope attached to another vehicle. At the end of the test, the

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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laminate glass was fractured but remained in place. He said this demonstrated that

laminate glass would have survived the bus crash.

[274] This test comes nowhere near to simulating the complexity of the accident

here which involved: the force of the bus on the windows when the left side hit the

pavement; the force of the occupants on the glass when they hit it while the side was

still on the ground; and the pressure of the passengers on the window as the bus

righted itself. As noted below at para 292, the expert called by Prévost, Mr.

Ridenour, estimated that Mr. Phillips’ dog food test was not even one percent of the

load of the first impact when the bus hit the ground.

[275] Another example of Mr. Phillips’ testing was the hitting of a window with a

baseball bat to demonstrate the strength of laminate glass. Not only does that have

no semblance to the dynamics of the crash in this case, but as pointed out by Mr.

Ridenour, the glass used in the test was security glass not suitable for vehicles

because it would cause paraplegia, quadriplegia, or death if a head hit it on a side-

impact.

[276] Mr. Phillips’ report refers to a long list of articles and documents that he does

not have the expertise to evaluate, nor did he put them in perspective. For example,

he referred to a number of documents from Ford regarding glazing, saying they

support the use of laminate glass. However, Mr. Ridenour says:

Mr. Phillips report contains a three page list of a portion of Ford Motor

Company’s four decades of research attempting to reduce occupant ejections

though use of stronger window glazing. I worked in Ford Safety Engineering

during most of that time period and participated in some of that that research.

Mr. Phillips fails to mention that despite this extensive effort Ford never found

a safer window material suitable for automotive side windows than tempered

glass.

[277] Assuming the report to be admissible, I give it little weight and prefer the

opinions of the experts called by Prévost to which I now turn.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

3. Prévost’s experts

a) Jack Ridenour

[278] Mr. Ridenour was tendered as an expert in:

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mechanical and biomedical engineering qualified to provide opinion evidence

in the fields of motor vehicle safety design, motor vehicle safety testing, motor

vehicle safety regulations, and motor vehicle safety glazing systems.

[279] Mr. Ridenour has an undergraduate degree in mechanical engineering and an

M.Sc. in biomedical engineering. He is an adjunct faculty member in the biomedical

engineering department of Wayne State University.

[280] Mr. Ridenour spent 37 years working with Ford Motor Company, his final

position being chief engineer, vehicle safety. The department had approximately 125

engineers and included an accident investigation group.

[281] At an earlier point in time, Mr. Ridenour said he was asked to become the

company expert in glazing when its glass manufacturing division was sold: Ford did

not want to lose its glazing expertise with the sale. Mr. Ridenour said he became the

“go-to guy” for glazing issues and participated in setting Ford’s glazing policies,

including specifications for glazing to be used in Ford’s automobiles and trucks.

[282] Mr. Ridenour said he worked on bus safety at Ford because it manufactured

chassis for school buses. He was familiar with how buses roll over.

[283] Mr. Ridenour summarised his opinion at the outset of his report:

Briefly stated it is my opinion that the decision by Prevost to install tempered

glass in its 1998 H3-45 was entirely reasonable and in keeping with

standards in the motor vehicle industry. The use of laminated glass in motor

vehicles is fraught with perils that did not make it suitable for installation as

side windows in 1998. I am also of the opinion that if laminated glass was

installed in the 1998 H3-45 that glass would also have likely failed and led to

ejection of passengers. The laminated glass may well have also caused more

severe laceration injuries.

[284] Mr. Ridenour’s report began by noting that the U.S. and Canadian standards

(which are closely coordinated) in place since 1967 identified tempered glass as

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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appropriate for use in side windows of vehicles. There was never a requirement for

use of laminate glass.

[285] He noted that the use of laminated glass was primarily for windshields, to

prevent flying debris or stones from piercing the glass and to maintain driver visibility

in the event of a fracture. However, for side-windows, the use of tempered glass is

the preferred option and the one which is invariably used in the industry. This is

because laminated glass has two serious disadvantages: it is weaker than tempered

glass and creates an increased risk of laceration to passengers if the glass fractures.

[286] Mr. Ridenour described the three types of laceration risk associated with

laminated glass:

 An event gruesomely referred to as “horse-collaring”, where an occupant’s head

goes through the glass but is stopped by the shoulders, exposing the neck to

severe laceration from the jagged edge of the hole in the glass.

 Small fragments of the laminated glass that, when fractured, enter the human

eye. During the time required to reach medical care and remove the fragment,

movement of the patient’s eye continues to increase damage to the eye. These

types of fragments are particularly difficult to remove and cause permanent

serious eye injury including blindness.

 The vinyl interlayer of laminated glass tends to hold fractured surfaces of glass

together. When displaced, the vinyl hinges along the glass fracture lines,

exposing the fractured edges of the glass in a ridge that has sufficient rigidity to

pose a severe laceration hazard not present with tempered glass.

[287] Mr. Ridenour said that virtually all motor vehicles made in 1998 to the present

use tempered glass for the side windows. The one exception was a few high-end car

manufacturers such as Rolls Royce, where laminate glass was used to provide

better soundproofing. However, the risk of laminate in those vehicles was mitigated

by the use of side air bags.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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[288] He added:

Ford and Volvo first introduced heat strengthened laminated glass for sound

mitigation in their 2003 premium SUVs. Rollover crash tests of a large Ford

SUV and a Volvo XC90 equipped with these laminated windows demonstrate

the inability of even heat strengthened laminated side glazing to restrain a

single unbelted occupant per window in typical highway-speed rollovers.

These tests were reported in a peer reviewed paper published by the SAE in

2007, SAE 2007-01-0367, “An Evaluation of Laminated Side Window Glass

Performance During Rollover” (Attachment G) which concluded that even this

high tech laminated glass is not suitable for occupant retention. In my

opinion, this research data clearly demonstrates that these advanced glazing

laminates would be even less effective for occupant retention in the large

windows of motor coaches where multiple occupants can load a single

window.

[289] Mr. Ridenour said that in the face of the research by Professor Patrick

(referred to above), it would have been irresponsible for Prévost to have used

laminate glass in the side windows.

[290] With respect to the question of whether laminate glass would have survived

the collision, Mr. Ridenour referred to the multiple forces that the windows were

subjected to in the crash:

a) the left side of the bus fell more than 3.7 m (12 feet) onto the pavement and

was subsequently loaded with the impacts of multiple occupants falling onto

the window surface;

b) sustained contact of the windows with the road surface when the bus slid on

its side; and

c) the impact with the ground on the opposite side of the road and the lifting of

the bus into an upright position with the additional loading of the passengers

onto the glass as the bus was lifted.

[291] In cross-examination, Mr. Ridenour said that the severest impact to the

windows was when the side of the bus slammed into the ground. The windows likely

fractured on that impact.

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[292] As mentioned, Mr. Ridenour said that Mr. Phillips’ dog food bag test simulated

not even one percent of the load on the glass when the bus first hit the ground:

Mr. Phillips describes demonstrations he conducted of a car door with 40

pounds of dog food, later increased up to 190 pounds, being dragged on

pavement as evidence that laminated glass would survive this accident.

These static loadings are insignificant compared to the impact and sliding

loading produced by this 45,000 pound bus. The small recessed glass

window used in these demonstrations is approximately one eighth the size of

the bus side windows, and produced nowhere near the stresses that would

be produced in a bus size window. None of these demonstrations included

even a single impact or inertial loading to the glass. Without the similar

window size, similar static loading, any inertial loading, or impacts, these

demonstrations have no relevance to the performance of a laminated window

in this accident sequence.

[293] Further, Mr. Ridenour noted that the laminate windshield of the bus

completely vacated, whereas the tempered glass on the right side on the bus

remained intact.

[294] He concluded that no glass would have survived the crash:

Of course, in a motor coach with large panoramic windows the occupant

weight would be thrown into a much larger window thus creating even higher

stresses than the NHTSA loading tests. For example, in this accident multiple

occupants impacted the left side large windows. These occupants were

thrown from up to eight feet onto the glass windows. The window in which

Ms. Hua Li Pan was ejected was also impacted by multiple other passengers

during the rollover and was loaded by multiple passengers when the bus

suddenly rotated back on its wheels. This level of window loading far exceeds

the 40-pound fractional occupant weight researchers were unsuccessful in

safely retaining in the decades of NHTSA and auto industry research. Clearly

no alternative glazing material or window design could have safely retained

the impacts and weight of multiple occupants on a single large bus window.

Indeed, it is my opinion that even if laminated glass was used in the subject

bus it almost certainly would have failed and led to ejection of the occupants

because of its lower strength. Moreover, when it failed it may well have

caused more catastrophic injuries because of its increased laceration risks.

[295] Mr. Ridenour was far more qualified than Mr. Phillips and his evidence was

not undermined in any major way.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

b) Mr. Richards

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[296] I introduced Mr. Richards in the prior section dealing with seatbelts. He was

also asked to give his opinion on whether laminated glass would have been effective

in mitigating injuries.

[297] Mr. Richards noted the expected movement of the passengers in the

accident:

In rollover accidents with high roll rates, occupants tend to move away from

the vehicle’s center of gravity, moving upwards and outwards, but given the

low roll rates in the subject incident this motion would not dominate the

occupant kinematics. As the motorcoach tipped towards the driver’s side

eventually slamming down onto the road, gravity would have pulled the

occupants towards the left side of the motorcoach. It is expected that all the

occupants would have been thrown predominately leftwards, but also

somewhat forwards as a result of the motorcoach decelerating in the

longitudinal direction. The leftward occupant motion relative to the vehicle

interior would continue until arrested by contacts with interior vehicle

structures, perimeter contacts, occupant contacts, or exterior contacts.

[298] He calculated the force at which the plaintiffs would have hit the glass. In

cross examination it was put to him that this was done in a general way, not

calculated precisely to the movements of Ms. Ding. He acknowledged this was the

case but responded that the matter could not be done with precision:

Q

Right. And I took because you did that in a sort of -- I don't mean this

in a pejorative way, but you did that in a general way. My question

was you didn't do that in a specific, calculated way towards the

kinematics of Ms. Ding; right?

A

Yeah, I mean, when I talk about her injuries, I talk about possible

interactions with other occupants and the windows, but yeah, I mean,

specifically identifying, like, every contact and every movement, you

know, of all the occupants coming from the far side of the bus with

potential contacts to Ms. Ding, no, I mean, I don't think that level of

detail is even possible, to be quite honest.

Q

A

But I'm trying to move away from the word "potential," which I think

means speculation, and I'm trying to just confirm that you didn't do it in

a specific sense; right? You didn't do that calculation. You didn't try to

-- and maybe you weren't asked to. I don't know.

Well, I mean, it's rather chaotic when this happens and you get

everyone piling over to the left side of the bus. The exact interactions

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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of an elbow from one occupant to the torso of another occupant, no, I

mean, I didn't -- I wasn't able to figure that out.

[299] Mr. Richards concluded that it was highly unlikely that laminate glass would

have acted as an effective countermeasure for ejection. He also said that the large

shards of glass associated with fractured laminated glass would have resulted in an

increased risk of serious laceration.

4.

Analysis: glass issue

[300] I place little weight on the plaintiff’s experts because of the deficiencies I

pointed out above. Mr. Ridenour had vast experience in the field of motor vehicle

glazing and was a credible expert. While Mr. Richards was not a glazing expert, his

background allowed him to assess the likelihood of laminate glass surviving the

crash.

[301] The industry standard was to use tempered glass in the side windows. Mr.

Ridenour explained why that was the preferable choice.

[302] I conclude that the coach was not negligently designed because it used

tempered glass, whether in and of itself, or in combination with the lack of seatbelts.

[303] I further conclude—as the plaintiffs conceded—that laminate glass would not

have survived the crash intact and prevented ejection. It might even have caused

further injury.

III.

LIABILITY OF UNIVERSAL AND CANAM FOR NEGLIGENT SUB-

CONTRACTING

[304] The case against Universal and CanAm is, in essence, for negligent sub-

contracting. This breaks down into two broad allegations:

a) Universal and CanAm ought to have ensured that any bus operator they

contracted or sub-contracted with operated a bus with seatbelts; and

b) In selecting a subcontractor, Universal and CanAm had a duty to inquire as to

its hiring, training, and safety practices. As Ms. Pan argued, had they

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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exercised their due diligence, “they would have forced Western to put in place

the training that might have avoided the accident, or they would have found

another operator.” This argument largely hinges on the allegation that the

accident was caused by fatigue.

[305] CanAm and Universal were in different positions. To recap, CanAm

contracted with Universal for the provision of a bus and driver. Universal did not

have a bus available, so they sub-contracted Western for the bus and driver for the

tour. Universal made the decision to farm the tour out to Western and had a direct

relationship with it. CanAm’s relationship was with Universal. However, it is a

difference without a distinction and one not raised by the parties. This is so because

Universal’s engaging of Western was done with the knowledge and consent of

CanAm. I will therefore treat their duties as the same for the purposes of this

judgment.

[306] There is no contest that Universal and CanAm owed a duty to exercise

reasonable care in selecting a sub-contractor or sub-sub-contractor. The issue is

what that duty entailed.

A.

Lack of seatbelts

[307] I concluded in the previous section with respect to Prévost’s liability that

buses manufactured without seatbelts were not hazardous or defective and that

there was no duty to warn potential passengers that the bus did not have seatbelts. I

also concluded that the fact that Prévost began to manufacture its buses with

seatbelts in 2009 and offered a retrofit kit in 2010 did not make the previously non-

hazardous bus into one that was hazardous. Rather, the seatbelts were an

evolutionary and incremental safety feature.

[308] In light of that, CanAm or Universal cannot have been negligent in engaging a

bus that did not have seatbelts.

[309] Although my decision does not hinge on this, I note that to conclude

otherwise would be to impose a duty on the tour industry to only hire buses with

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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seatbelts and an obligation on the bus industry to only operate with seatbelts. But

that would have been an impossibility because there were simply not enough

buses—nor are there now—to meet that requirement. Once again, this is a tightly

regulated industry and to “reform” it in that sweeping a manner should be the role of

a regulator.

[310] In conclusion, Canam or Universal were not negligent in engaging a bus

operator—Western—that did not employ seatbelts.

B.

Failure of Universal and CanAm to investigate training and safety

planning at Western

[311] I set out the essence of the plaintiffs’ position on this point above at para.

304(b). Ms. Pan argued that Mr. Spittal was not provided with the minimum training

required by the relevant legislation. In particular, he was not trained on how to detect

if he was sleeping sufficiently. She says that “if Universal had undertaken proper due

diligence, the woeful lack of occupational health and safety at Western would have

been exposed long before Mr. Spittal was ever dispatched to operate the Tour Bus.”

[312] Ms. Pan’s argument hinges on showing all of the following:

a) Universal should have investigated the training procedures at Western, but

did not do so;

b) The accident was caused by fatigue;

c) Proper training would have allowed Mr. Spittal to recognise that he was

fatigued or would become fatigued; and

d) If Universal had done a proper investigation, it would have realised Western’s

training was deficient and not have engaged Western or at least not allowed

Mr. Spittal to be assigned as a driver.

The first of the above items concerns the standard of care and its breach; the

remaining items concern causation.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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[313] For the reasons that follow, I conclude the plaintiffs fail on all of the above.

1.

Did Universal’s duty of care to the plaintiffs require it to

investigate Western’s training and safety procedures?

[314] Once again, there is no real dispute that Universal and CanAm owed a duty

to exercise reasonable care in selecting a carrier. The issue is what that standard

entailed. The duty of care propounded by the plaintiffs posits an audit by Universal of

Western’s training programmes. For their part, CanAm and Western say it was

sufficient to have relied on the licensing of Western.

[315] The regulatory regime concerning the bus transport of passengers is relevant

to this issue. It is, again, highly regulated.⁵

[316] The regulatory regime applicable to this case includes the following:

a) The BC Passenger Transportation Act, S.B.C. 2009, ch. 39, and the

Passenger Transportation Regulation, B.C. Reg. 266/2004;

b) Parts of the Motor Vehicle Act that apply to passenger transportation

licensees;

c) Parts of the Motor Vehicle Act Regulation, B.C. Reg. 26/58, that apply to

passenger transportation licensees, and in particular, Division 10:

Commercial Passenger Vehicles, Division 25: Vehicle Inspection and

Maintenance, and Division 37: Safety Code;

d) The Motor Vehicle Transport Act, R.S.C 1985, c. 29; and

e) The Commercial Vehicle Drivers Hours of Service Regulations, SOR/2005-

313.

[317] All operators of commercial transport vehicles are required to have a

passenger transport licence (PT License).

⁵The description of the regulatory regime is largely taken from Universal’s argument.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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[318] As set out in an agreed statement of facts:

a)

Since 1989, to obtain a PT Licence in BC, the applicant must first acquire an

NSC [National Safety Code] Certificate by applying through the NSC office of

the Commercial Vehicle Safety and Enforcement (“CVSE”), a department of

the Ministry of Transportation and Infrastructure (“MOTI”) in the Province of

B.C.

b)

c)

An NSC Certificate is required when operating commercial vehicles weighing

in excess of 5000 kg, including passenger transportation vehicles.

Applicants are required, among other things, to provide the following:

i.

ii.

a business name/number as registered in the Province of B.C.;

a BCeID;

iii.

a safety plan demonstrating the establishment of and the ability to

maintain practices and procedures necessary to ensure that the

company complies with the Passenger Transportation Legislation;

and

iv.

descriptions of the types and sizes of vehicles to be operated under

the NSC Certificate.

d)

Once the NSC Certificate is awarded, the applicant can then apply for a PT

Licence, under either a General Authorization (“GA”) or a Special Authorization

(“SA”) or a combination of both types of authorizations.

e)

f)

A GA is awarded for PT Licensees not providing SA services under the

Passenger Transportation Legislation.

Examples of SA services include Intercity Bus Services (“ICB”), which involve

scheduled bus services operated over set routes and time between

municipalities, or Passenger Directed Vehicles (“PDV”) which include

limousine and taxi services, operating vehicles with a capacity of 11 or fewer

passengers.

g)

When applying for a PT Licence, the applicant provides:

i.

ii.

its NSC Certificate number;

a non-refundable application fee of $200;

the nature of its business;

iii.

iv.

what the vehicles will be used for;

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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v.

vi.

size and type of the vehicle, make, model, year;

where the vehicles will be operated;

vii.

viii.

its service fee structure and how it is paid; and

a signed Vehicle Safety Compliance Declaration.

h)

i)

If a GA is being applied for, the Registrar of Passenger Transportation at the

Passenger Transportation Branch will award the licence if all criteria are met.

If a SA is being applied for, the Registrar of Passenger Transportation refers

the application to the Passenger Transportation Board in Victoria who then

assumes the responsibility of approving or denying the SA.

j)

Upon approval of the PT Licence, the applicant must submit to the Registrar of

Passenger Transportation:

i.

a copy of the current insurance/registration documents for all

vehicles indicating the insurance rate class (area of operation), the

applicant's NSC number and the Commercial Vehicle Inspection

Type (semi-annual or annual); and

ii.

a copy of the current Commercial Vehicle Inspection.

[319] In order to obtain an NSC Certificate, the applicant must develop a safety

plan approved by the NSC office. The plan must:

 include all the principles of management, compliance, monitoring, drivers’

hours, and drivers’ files;

 set out the fleet, hours of service, record keeping requirements, maintenance

files, maintenance plans, logbooks, driver files and drivers’ abstracts; and

 name the individuals responsible for the various components of the NSC, and

those individuals are required to take a knowledge test. Once the NSC

Certificate is awarded, the applicant can then apply for its PT License.

[320] In order to obtain and maintain a PT Licence, licensees are required to

ensure its drivers are licensed, compliant with proper training, and operating under

the guidelines of the PT Licence.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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[321] Moving to the facts of this case, the sub-contracting of bus services from one

bus operator to another—as was done here—is known in the industry as “farming-

out”. A farm-out is done by one PT licensee to another and the ultimate provider of

the services operates under its own PT license. Universal and Western both held PT

licenses.

[322] Farming-out is a common practice in the industry and one used frequently in

the past between Universal and Western, including for CanAm tours. Universal

worked with Canam and provided passenger transportation services for Canam’s

tours since 2002. Between 2011 and 2014, Universal farmed-out passenger

transportation services to Western over 260 times. A witness from a company

unrelated to the parties said it would be impossible for the bus industry to work

without the ability to farm-out. He testified that in 2005, the company he worked for

farmed-out 992 out of its 3,711 bus orders.

[323] The evidence shows that Western was well known as a reputable PT

Licensee. It had extensive experience with the type of four-day Rocky Mountain

tours that was underway when the crash occurred. Western:

 held a valid inter-provincial operating licence in Alberta;

 was part of the Unified Carrier Registration;

 was a member in the International Fuel and Taxation Authority program;

 had all of its vehicles inspected and approved as school buses; and

 held a valid US Department of Transport (USDOT) Certificate to operate in

the US.

[324] Mr. Tong of Universal testified that Universal’s usual farm-out practice each

season included:

a) confirming that the operator’s PT Licence was current;

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b) reviewing the binders in the vehicles of the other PT Licensees to check the

PT, up to date vehicle insurance registration and other documents;

c) an annual review or confirmation of the safety ratings of contractors from the

USDOT (which is available online); and

d) visual inspections of the vehicles of the other PT Licensees to ensure proper

affixation of vehicle safety inspection and insurance decals, license plates,

and copies of certificates of insurance registration and Passenger

Transportation Legislation licensing in the vehicles.

[325] Mr. Tong testified that he checked the binders in the Western buses at the

start of the 2014 tourist season.

[326] Universal and CanAm point out that an NSC (National Safety Code)

compliance review of Western was completed three months before the accident,

with a satisfactory result. During a typical compliance review, an NSC officer

examines the company’s records at its place of business including the bus records,

driver files, driver logs, and the company’s safety profile. Western’s 2014 compliance

review noted that Western was following its safety plan. The comment in the

“General Remarks” section was:

Overall the records are in good order, however, it was noted that there were

areas which the carrier needs to pay more attention to in order to keep NSC

points down. Notably, drivers are not handing in Violation tickets, and some

CVSA Inspection reports. Some have been OOS inspections. This inspector

did not see any meaningful discipline on the drivers' files for NSC infractions.

Maintenance Records are well kept. Safety Plan and company policy are on

drivers' files.

There were some deficiencies noted, but they were minor. None of them were

relevant to any of the issues here and Western was not told to cease operations.

[327] Western’s satisfactory compliance review not only goes to causation (if the

review did not disclose relevant deficiencies, neither would a similar review by

Universal) but is also illustrative of the standard of care proposed by Ms. Pan. Ms.

Pan dismisses the significance of the compliance review on the basis that it is limited

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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to a small sample of records examined over a half day. In effect, her argument is

that Universal ought to have done more than the regulator and reviewed more

records and spent more time doing an investigation. There is no support for that in

the evidence, in the law, or in common sense.

[328] Ms. Pan emphasized that a safety plan is a central element of the workers

compensation regulatory regime. But that reinforces the conclusion that Universal

was entitled to rely on the enforcement regime and cannot be expected to conduct

its own audit.

[329] The plaintiffs rely on references to the high standard of care owed by a public

carrier made in several cases, for example Zhang v 328633 B.C. Ltd., 2020 BCSC

1521. However, those cases concern the manner of driving and not the issue of

selection of a bus operator.

[330] I conclude that in the absence of any specific knowledge sufficient to raise

concerns—which did not exist here—Universal was entitled to rely on Western’s

licensing and regulatory compliance. It was not required to do an audit of Western’s

safety practices any more than a tour company engaging Air Canada for a charter

flight would be expected to examine the records of its pilot training and safety

operations.

[331] That is sufficient to dispose of the action against Universal, but I will

nevertheless address causation.

2.

Was the accident caused by fatigue?

[332] The arguments on the liability of CanAm and Universal for negligent

subcontracting hinge on the accident having been caused by Mr. Spittal falling

asleep at the wheel and drifting onto the rumble strip. The defendants (other than

Prévost, which is not concerned with this issue) say that has not been proved. They

submit that Mr. Spittal had a lapse of attention. They point to the fact that the

accident could also have been caused by a medical event, although neither side

brought forward any evidence bearing on that point.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

a) Mr. Spittal

Page 82

[333] When the accident happened Mr. Spittal was 63. He started work with

Western the month of the accident, but had 20 years of prior driving experience.

[334] Mr. Spittal started his driving career driving working for Metro Transit for four

years, driving city buses in Vancouver. After his training with Metro Transit, he

obtained his class two licence which entitled him to drive buses. He upgraded to a

class 1 license which allowed him to drive any vehicle, including semi-trailers.

[335] Mr. Spittal also had experience driving intercity buses for Jim’s Limo,

including large 47-passenger buses. Some routes were local day trips, and some

took Mr. Spittal out of town or involved driving overnight.

[336] Mr. Spittal’s last job before Western was as a driver for Brinks Canada

Limited where he worked for approximately 20 years. He drove two-day, three-day

and five-day runs around British Columbia. He drove the Coquihalla Highway

regularly, up to four days per week. The Brinks truck was a 43-foot tandem truck and

had a crew of three, who would spell each other off for the driving.

[337] In 2013, when he was 63, Mr. Spittal retired from Brinks with an accident-free

record. He quickly became bored and started looking for part-time work. He applied

to Western and was hired.

[338] Mr. Spittal was assigned to driving the Rocky Mountain tours. Although his

preference was not for multi-day tours, he had no concerns about doing them if they

stayed within the driving limits imposed by the National Safety Code, which they did.

He did two previous tours before the crash. On one of them, he had a “fender-

bender” with a parked car.

[339] I will return to more of Mr. Spittal’s evidence later but note here that no

serious challenge was made to his credibility or his evidence. I find him to have been

a credible and reliable witness.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

b) The tour before the accident

Page 83

[340] As I mentioned above, the bus was returning from a four-day Rocky Mountain

tour when the crash occurred. The tour followed a fairly standard itinerary, both for

CanAm and for other tour companies. For CanAm, it was same tour that it had been

doing since 1990 with minor adjustments.

[341] Day one of the tour started in Richmond, stopped in Kelowna and ended in

Salmon Arm. Day two went from Salmon Arm to Banff through the Rocky Mountains.

On Day three, the tour went from Banff to Lake Louise and the Columbia Icefields in

Jasper National Park. Day three ended in Golden, BC. Each day involved several

stops at sightseeing destinations when Mr. Spittal was able to rest. On the last day

of the tour—the day of the accident—the bus drove from Golden to Kamloops,

making two stops before stopping again for lunch at the Lotus restaurant in

Kamloops.

[342] When Mr. Spittal was exiting the parking lot after lunch on the last day, he

scraped a luggage door of the bus against a cement curb. The door remained

secure and the tour proceeded after Mr. Spittal and Mr. Yu called their respective

companies to report the incident. Mr. Yu said the damage was cosmetic. Mr. Yu said

he asked Mr. Spittal if he was OK, but he had no concerns about his state of health

or fatigue.

[343] There was another incident the day of the accident which the plaintiffs rely on.

The bus hit and killed a dog on the highway. Mr. Spittal said the dog ran out in front

of the bus and to swerve to avoid it would have been too dangerous.

[344] The tour was described by other drivers and the administrative witnesses

from Western as an easy one for a driver because of its frequent long stops at tourist

attractions during which the driver had no duties and could rest as he or she wished.

[345] I provide further details of the tour schedule the day before and day of the

accident below.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

c) The accident

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[346] The accident occurred on August 28, 2014 on the southbound lanes of the

Coquihalla highway approximately 22 kms south of Meritt. Although the bus had

previously gone through a localised squall, at the time and location of the accident,

the weather was bright and clear. The road was dry.

[347] The accident was fully captured by a dashcam video in a trailer-tractor rig

operated by George Eyre.

[348] Describing what the video shows, the truck was in the right-hand lane of two

southbound lanes approaching a moderate curve to the right when the bus began to

pass. The road turned into three lanes and the truck continued in what became the

far-right lane. The bus passed the truck and shortly after moved into the middle lane.

Whether there was a steering input to make the lane change versus ending up in the

middle lane because of the curvature of the road is a matter of debate. No turn

signal was visible.

[349] The bus carried on and instead of negotiating the curve to the right, it

maintained a straight course. Its left wheels contacted the soft shoulder of the

median and it is common ground that Mr. Spittal attempted to correct course and

steered to the right sharply. The bus started to lean over onto its left side as it edged

back into the lane. It then tipped over or “tripped” onto its left side when it reached

the middle lane and slid on its side across the southbound lanes to the far right,

hitting the earth of the right-hand shoulder. On the video, the bus disappeared into a

cloud of dirt caused by the crash. The truck pulled up to the bus, which had

uprighted itself on the right shoulder. Some passengers were on the ground; others

were standing visibly stunned. Debris was on the roadway.

[350] Although not visible on the video because of the dirt cloud, it is common

ground that the bus was forced back up into the upright position when its tires

furrowed into the earth on the right-hand shoulder. It is also common ground that the

bus tripped because Mr. Spittal over-corrected when the wheels contacted the left

shoulder.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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[351] Mr. Spittal did not recall the accident. He said:

I recall driving uphill in one of the two lanes on the left-hand side. There was

three lanes. And in the right lane was a semi, and I passed the semi, and the

next thing I know I've been in an accident and I have no memory of

whatsoever happened.

. . .

Well, that's the only thing I do remember after the accident that, you know, I

had been in the accident, and but what caused it, I have no idea. I just have

no memory of the cause of the accident.

. . .

The only thing I can recall is that I was travelling uphill past the semi. The

next thing I knew I had been in an accident and was, yeah, off the highway. . .

. And in between that I have no memory.

[352] Mr. Spittal was airlifted to the hospital with a large bump on his head and

fractured ribs. When in the hospital he recalled “passing in and out of

consciousness”.

[353] Speed is not a factor in the accident, but Mr. Eyre (the truck driver) estimated

the bus was travelling at no more than 90 to 100 km/h when it passed him. He

described the bus as driving straight into the left ditch.

[354] As I said, Prévost has no stake in this issue, but called an expert, Mr.

Beauchamp, who performed a reconstruction analysis of the accident. He had been

asked by Prévost to assume that the driver fell asleep and did not offer an opinion

on whether that was likely the case. His report did say that: “[T]he driver was

inattentive to the driving task for a prolonged period.”

[355] In cross-examination, Mr. Beauchamp was asked if he could calculate the

total time of lack of steering input. He stated he had not analysed that and added:

I do know the path from when the bus comes into view in the camera until

when it goes off the road is basically like a constant curvature more or less

through that time, and there doesn't appear to be much, if any, steering going

on and the bus is basically moving to the right on the road and then back over

to the left.

So more over -- over the majority of that period I think that would stand as

stated. I don't know when -- I've been trying to figure out specifically when

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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this transition is. In other words, you know, when the driver of the bus

perceived that he needed to steer, for example; I haven't done that work.

[356] Again in cross, Mr. Beauchamp estimated that there was approximately a two

second gap between the time the wheels touched the rumble strip and the steering

correction.

[357] From the video, the time between when the bus comes into view in the

dashcam video to the time it reaches the rumble strip is approximately ten seconds.

[358] Ms. Ding’s reconstruction accident expert, Dr. Toor, said in his report:

Phase 1: Lane change to the right

This part of the bus dynamics appears to be “normal” driving. A force known

as centripetal force would have kept the bus on an arced path while changing

lanes; it would have been directed inwards toward the center of the arced

path. The occupants inside the bus would have experienced equal and

opposite force, called centrifugal force.

[359] The RCMP reconstruction expert, Sgt. Nightingale, appeared to interpret the

move into the centre lane after the bus passed the truck as deliberate. In his report,

Sgt Nightingale annotated the frames of the video and noted:

Bus enters the middle lane as the highway changes from two to three

southbound lanes. Bus pulls in front of Commercial vehicle. Within a second

bus starts to cross into the far right lane.

And then:

Bus travels as far as its going to to the right then begins its drifting motion to

the left. The roadway is curving slightly to the right so this drifting action could

be consistent with the curvature of the road and not from a steering input.

[360] Mr. Yu described the moments before the accident:

I remember going down the highway like the little hill, and then he changed

lane from slow lane to fast lane. And then on the left -- he was doing normal

with signal and stuff. After we climbed the little hill taking a right kind of

normal way like a right curve like slowly the rumbling strips, then I turned

around and then the flash and it happened.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

Page 87

[361] Ms. Yao was sitting directly behind Mr. Spittal. She said she was concerned

about Mr. Spittal because of the dog incident and because he had spilled coffee on

himself earlier (not when driving) and appeared upset about it. She was keeping a

close watch and checking the speedometer. She said she saw Mr. Spittal yawn.

When asked about what she recalled about the accident happening she said:

Because I had been keeping watch, so I was keeping an eye on him. So then

I noticed that the driver kind of slid onto the left side of the road. There was a

point of -- on the road that was sloping down and he was directly going down.

And then I realized that there was a serious problem and it's not just a simple

thing as going into another lane. And then the tour guide started running --

dashing towards the driver and calling his name, and then the driver started

to very quickly turn the steering wheel and then the car started sort of almost

like flying over.

It would, of course, have been impossible for Mr. Yu to have run over to Mr. Spittal

as Ms. Yao said, and Mr. Yu did not say he did that.

d)

Analysis: cause of the accident

[362] There is no direct evidence as to why Mr. Spittal failed to negotiate the curve.

As I noted above (para. 351), he said he did not recall anything between passing the

semi-trailer and ending up off the highway after the accident.

[363] The plaintiffs argue that the only inference to be drawn from the evidence is

that Mr. Spittal fell asleep at the wheel. They point to the fact that there is no

evidence of other distractions or that he was on medications.

[364] Mr. Spittal denies he was fatigued. He said he had a regular night’s sleep the

night before the accident and had no recollection of feeling tired on the last day of

the tour or any point during the two previous Rocky Mountain tours. He was given

the tour itinerary before the tour, and had no concerns about the amount of driving

time because he was satisfied it would keep him within his allowable hours of

service.

[365] Mr. Spittal’s driving schedule on the day before the crash was:

. 6:45 am–7:00 am (pre-trip inspection)

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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. 7:00 am–8:15 am (on duty driving)

. 8:15 am–11:15 am (off duty break, passengers touring around Lake Louise)

. 11:15 am–1:30 pm (on duty driving)

. 1:30 pm–4:30 pm (off duty break, passengers had lunch and went to

Columbia Icefield tour)

. 4:30 pm–8:00 pm (on duty driving from Columbia Icefield to Golden, BC)

[366] On the day of the crash his schedule was:

. 6:45 am–8:45 am (on duty driving, 2 hours)

. 8:45 am–9:15 am (off duty break, passengers stop at Golden Spike)

. 9:15 am–11:15 am (on duty driving, 2 hours)

. 11:15 am–12:15 pm (off duty break, passengers stop at Ginseng factory)

. 12:15 pm–12:30 pm (on duty driving, 15 minutes)

. 12:30 pm–1:15 pm (off duty break, lunch)

Therefore, prior to lunch on the day of the crash, Mr. Spittal had driven a total of four

hours and fifteen minutes, broken up by two breaks totaling one and a half hours.

Mr. Spittal had a 45 minute lunch break before resuming the tour at 1:15 pm. The

bus crashed at 2:30 pm.

[367] Mr. Spittal said he had plenty of time during each day in which he could take

a break for “just relaxing, taking it easy”. He said if he had needed a break at any

point at any other point, he would have taken one.

[368] Mr. Yu did not observe any signs of fatigue in Mr. Spittal throughout the tour.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

Page 89

[369] As set out above, Mrs. Yao was sitting behind Mr. Spittal keeping on eye on

him and the speedometer. She did not say she noticed him fall asleep immediately

before the accident.

[370] Some minor errors were noted in Mr. Spittal’s log books, but there is no

evidence of over-driving in the log books or otherwise. Moreover, the tour schedule

makes that a virtual impossibility, unless Mr. Spittal was taking the bus for joy rides

in the night.

[371] The plaintiffs point to the fact that Mr. Spittal was diagnosed with sleep

apnea, but that was in 2016, two years after the accident. Without expert evidence, it

is of little assistance to establishing that he had that condition at the time of the

accident. And even if he did, he was unaware of it. My judgment does not rest on

this, but I note that there was no expert evidence regarding the possible effects of

sleep apnea.

[372] Although it does not appear that Mr. Spittal used the lane-change signal, the

evidence of whether the initial lane change to the left after the bus passed the truck

that I set out above was inconclusive. This includes the evidence of the

reconstruction experts who were not initially asked to address the point when

preparing their opinions.

[373] The fact that Mr. Spittal did not recall anything from the time he passed the

bus until after the accident cannot be indicative of him having fallen asleep because

one thing is certain: the over-correction to the right was deliberate. If the vibration of

the rumble strip had woken Mr. Spittal up, as the plaintiffs allege, he would likely

have remembered that.

[374] I conclude that the plaintiffs have not proven that Mr. Spittal fell asleep at the

wheel or that the accident was due to fatigue. It is just as likely that it could have

been caused by inattention.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

Page 90

3.

Assuming the accident was caused by fatigue, would a training

programme at Western or a fuller inquiry by Universal of Western

have avoided the accident?

[375] For the sake of completeness, I will assume here that I was wrong in my prior

conclusion and that the accident was caused by fatigue. The question then is

whether training of Mr. Spittal would have allowed the fatigue to be identified,

thereby preventing the accident.

[376] Even assuming he was in fact fatigued, Mr. Spittal did not feel that to be the

case, as I pointed out above. The diagnosis of his sleep apnea did not take place

until close to two years after the accident and if he had sleep apnea at the time of

the accident, he was not aware of it. The plaintiffs have not shown that any training

programme would have enabled Mr. Spittal to self-diagnose for sleep apnea.

[377] The plaintiffs rely on some inaccuracies in Mr. Spittal’s log books. But there is

no evidence that he was driving beyond the regulated time on the tour. In fact, the

unchallenged evidence of the timing of the tour (and the ones that preceded it)

shows the opposite. And, as I outlined above, it was recognised that the tour was

easy for drivers because of its frequent and long rest stops.

[378] Ms. Pan relies on the evidence of Mr. Richard, Universal’s present Director of

Marketing, Safety, and Compliance, who spoke about training at Universal and at

previous company he worked for, Vancouver Trolley. Ms. Pan emphasizes the

following training to which Mr. Richard referred:

 proper pre-trip procedures;

 completing an incident report;

 being well aware of service regulations for NSC and USDOT; and

 proper logbook completion.

Nothing noted here by Mr. Richard would have assisted Mr. Spittal in recognising

fatigue.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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[379] Ms. Pan called an occupational safety consultant, Mohinder Bhatti, as an

expert. Amongst other things, he was asked to opine on what would be required of

CanAm, Universal, and Western to meet Canadian Standards Association and

Workers Compensation Act, R.S.B.C. 2019, ch. 1, requirements for health and

safety issues.

[380] The defendants objected to the report’s admissibility. I do not need to address

that because I conclude that the report must be given no weight. Mr. Bhatti’s report

was generic and did not touch on fatigue, except as it concerned Mr. Yu. He

provided no details as to what a training programme for the recognition of fatigue

would entail.

[381] With respect to Mr. Yu, Mr. Bhatti was asked to assume that he received no

training. Mr. Bhatti said that Mr. Yu should have been trained to recognise signs of

driver fatigue without providing any foundation for that opinion. He then concluded:

Had the tour guide Mr. Mark Yu been educated on recognising signs of driver

fatigue and the actions taken, the incident . . . could have been avoided.

Given that there is no evidence that Mr. Spittal exhibited any signs of fatigue, this

conclusion is devoid of any factual foundation and a leap into advocacy.

[382] Based on what I have set out, it follows that any investigation or audit by

Universal or CanAm of Western’s safety practices would not have yielded anything

negative regarding fatigue.

[383] The plaintiffs also raised issues with respect to the extent of Western’s vetting

of Mr. Spittal during the hiring process. I will not set out the details because the issue

is a red herring. There was nothing in the hiring process that would have raised any

concerns of Western with respect to fatigue in Mr. Spittal. Moreover, it was not

incumbent on Universal or CanAm to audit the hiring practices of Western.

[384] I conclude that even if the accident was caused by fatigue (which I do not

accept) and even if Universal or CanAm ought to have investigated Western more

fully before engaging it (which I do not accept), there is nothing to establish that any

Ding v. Prévost, A Division of Volvo Group Canada Inc.

Page 92

issue of fatigue would have been revealed. In other words, causation has not been

proved.

IV.

FAILURE TO WARN

[385] The plaintiffs argue that Western, Prévost, Universal, and CanAm owed a

duty to warn them of the dangers of the bus not having seatbelts.⁶

[386] The plaintiffs’ position might best be summarised by the following paragraph

from Ms. Ding’s reply:

Using the subjective-objective test articulated in in Reibl v. Hughes, 1980

CanLII 23 (SCC) and affirmed in Arndt v. Smith, 1997 CanLII 360 (SCC), if

the Plaintiff had been warned that the Bus would be driven by someone with

little experience and employed by a subcontractor (Western) of a

subcontractor (Universal) with lower hiring and supervision standards than

the original subcontractor (Universal) and the original contractor (Canam), the

specific design of the Bus without seatbelts and tempered glass that would

break in a rollover increasing the risk of ejection and injury or death, then it is

likely that she would have selected a different vacation, such as one that did

supply a bus with seatbelts which she testified she would prefer if given the

option. If there were two buses to select from, one with seatbelts and one

without, she would have chosen to ride in the bus with seatbelts. But in the

circumstances presented to her she had no choice and no knowledge of the

specific risks to her and her son in the event the bus rolled over.

[387] The legal principles of failure to warn are not in dispute. A manufacturer has

a duty to warn users of its product of the dangers that it knows or ought to know are

inherent in its use. This duty exists even if there are no manufacturing or design

defects as long as there are dangers to using the product: Hollis v. Dow Corning

Corp., [1995] 4 S.C.R. 634 at paras. 20-22.

[388] However there is no duty to warn where an ordinarily prudent person would

be aware of the risk: Schulz v. Leeside Developments Ltd., 90 D.L.R. (3d) 98

(B.C.C.A.); (1984) Krysta v. Funland Enterprises Ltd., 57 B.C.L.R. 32 (S.C.).

⁶Given its admission of liability, the only relevance of this issue to Western is for the apportionment of

liability, if any, between the defendants.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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[389] In determining whether a warning need be given, the materiality of the subject

matter is relevant both in terms of the risk of the event occurring and the potential

severity of the injury: Double Bar L Ranching Ltd. v. Bayvet Corp., [1996] 10 W.W.R.

673 (Sask. C.A); leave ref’d [1996] S.C.C.A. No. 623.

[390] Causation is an element of a claim for failure to warn, as it is with any other

tort claim. The plaintiffs must show that the warning would have altered their

behaviour; in other words, that they would not have booked the tour or got on the

bus if a warning had been provided.

[391] In their failure to warn claim, the plaintiffs have not differentiated between the

different defendants. However, the defendants were in different positions with

respect to the warnings that they could have given, assuming they were under a

duty to do so:

 Prévost and Western had no relationship with the plaintiffs prior to them

boarding the bus. The only warning they could have given was a warning

label or plaque on the bus.

 Universal had no relationship with the plaintiffs at all and could not have

provided the plaintiffs with a warning on the bus because it was not a

Universal bus. That is sufficient to dismiss the action for failure to warn

against it.

 CanAm was the only defendant that could have warned the plaintiffs before

the tour began, whether in its sales brochures, on its website, or its booking

form.

The differences are of potential significance to the causation issue.

[392] I will deal with causation first because I think it is determinative of the failure

to warn claim.

Ding v. Prévost, A Division of Volvo Group Canada Inc.

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[393] One issue between the parties was the proper test to be used in determining

whether the plaintiffs would have heeded a warning. The paragraph from Ms. Ding’s

reply that I quoted above refers to the modified objective test in Reibl, which asks

whether a reasonable person in the plaintiff’s particular circumstances would have

consented to using the product if they had known all the material risks. The test is

described by the court in Arndt v. Smith, [1997] 2 S.C.R. 539at para. 6:

The test enunciated relies on a combination of objective and subjective

factors in order to determine whether the failure to disclose actually caused

the harm of which the plaintiff complains. It requires that the court consider

what the reasonable patient in the circumstances of the plaintiff would have

done if faced with the same situation. The trier of fact must take into

consideration any "particular concerns" of the patient and any "special

considerations affecting the particular patient" in determining whether the

patient would have refused treatment if given all the information about the

possible risks.

[Emphasis original.]

[394] Unlike a modified objective test, the subjective test does not posit what a

reasonable consumer would have done if she had been provided with a warning.

While considered to be more favorable to a plaintiff (Hollis at para. 46), it does

require her to convince the court that a warning would have resulted in a decision

not to use the product by leading evidence of that, normally through the plaintiff

herself. Thus, in More v. Bauer Nike Hockey Inc., 2011 BCCA 419—a case alleging

failure to warn against a hockey helmet manufacturer—the court stated:

[50]

Nor, as the trial judge found, would a more explicit warning have

affected Darren's conduct (at paras. 243-244). There was no evidence, either

direct (from Darren) or indirect (from his parents or any other source) to

suggest that Darren (or his parents) had read the warnings that came with the

helmet, or that if the warnings had included more details about rotational-

force injuries, Darren would not have continued to play hockey. This was fatal

to the appellants' claims that insufficiency of the warnings had any causative

relationship to his injuries: see Stiles v. Beckett (1993), 22 C.P.C. (3d) 145

(B.C. S.C.), at 166-168, aff'd (1996), 17 B.C.L.R. (3d) 144 at 150 (C.A.);

Baker v. Suzuki Motor Co. (1993), 12 Alta. L.R. (3d) 193, [1993] 8 W.W.R. 1,

at 29-30 (Alta. Q.B.).

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[395] This does not mean that a plaintiff’s evidence must be taken at face value. A

defendant is entitled to cross-examine a plaintiff and the court is to assess the

evidence as a whole: Hollis at para. 46.

[396] Contrary to the plaintiff’s argument, it is made clear in Reibl itself and then

later in Arndt and Hollis, that the modified objective test is limited to cases involving

medical malpractice cases because of the need to apply a more flexible standard of

causation to doctors than to product manufacturers. In product liability cases, the

subjective test is to be used.

[397] Coming to the evidence with respect to causation, Ms. Ding testified that she

wanted to do a tour with her son before he started school so she tried to find a tour

to fit her schedule. She said that if she had an option between buses with or without

seatbelts, she would have taken the one with belts because of safety, including the

risk of ejection. She wears seatbelts in cars, but she has taken taxis in China which

did not have seatbelts because they were not required by the government. She was

fine with doing that because she assumed the government did not think it was a

safety issue.

[398] Turning to Ms. Pan, she testified that she would have preferred a bus with

seatbelts because they helped reduce injuries. She was aware buses could roll over.

Once she got on the bus and saw there were no seat belts, she did not feel safe.

She had been on multi-day coach tours without seatbelts on two prior occasions.

She always wears her seatbelt when in a car.

[399] I note that neither plaintiff said they would not have booked the tour if they

knew the bus did not have seatbelts. They said they would have preferred a bus with

seatbelts. Neither plaintiff made an advance inquiry as to whether the coach would

have seatbelts.

[400] I will now posit a warning sticker or plaque on the bus itself. As I said above,

this is the only type of warning Western and Prévost could have given. Both plaintiffs

said they were aware of the risk of lack of seatbelts. The lack of seatbelts was not a

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hidden defect: it is something that the plaintiffs would have noticed immediately on

getting on the bus. They continued with the tour anyway. The inexorable conclusion

from that is that a warning plaque on the bus would not have made a difference to

them. Therefore, causation has not been proved with respect to the claim against

Prévost and Western.

[401] This leaves the remaining defendant CanAm, which could have provided an

advance warning. Once again, the plaintiffs testified only that they would have

preferred a bus with seat belts. There is no evidence that any tours with seat belts

were on offer, and certainly not by CanAm. To the contrary, what evidence there is

shows that very few buses with seatbelts were in the British Columbia bus fleet and

that other tour operators used buses without belts. In 2014, the Universal fleet had

60 highway coaches, only four of which were equipped with seatbelts. It provided

buses for 11 other companies who ran the Rocky Mountain tour without seatbelts. A

U.S. company, Tauk Tours, was given priority for the buses with seatbelts which

were essentially bought by Universal for the Tauk tours. In 2014, only two percent of

the highway coaches supplied by Universal for Canam’s tours had seatbelts.

Western had no buses with belts. Moreover, Ms. Ding said she had to fit the tour into

her schedule.

[402] I conclude that if CanAm had given a warning to either plaintiff, it would not

have made a difference to them and they would have booked the tour anyway.

[403] Causation has not been proven by either plaintiff against any defendant and

the failure to warn claim must be dismissed on that basis.

[404] But beyond that, I do not think it was necessary to provide a warning here.

The risk of a roll-over was too remote and the lack of seatbelts was obvious to

anyone getting on the bus.

V.

LIABILITY OF MR. YU

[405] It follows from the above that there is no liability of Mr. Yu. Even if he had a

duty to keep an eye out for driver fatigue, there is no proof that Mr. Spittal exhibited

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any visible signs of fatigue nor any evidence to support a finding that Mr. Spittal was,

in fact, suffering from fatigue.

VI.

CONCLUSION

[406] The action is dismissed.

[407] There is therefore no need for me to deal with the third party claims or

apportionment issues.

[408] Counsel had agreed to a list of common issue questions. I am not setting out

formal or separate responses to the agreed common issues. Many were rendered

moot by the concessions made in trial and argument. Further, many of the main

issues were broken down into too many sub-issues. Nevertheless, the common

issues were of assistance in coalescing things for trial and argument. My

conclusions on all the live issues should be clear from these reasons and they

should obviously stand as answers to the relevant questions.

[409] If necessary, counsel may make submissions with respect to costs.

Otherwise, the defendants are to have their costs.

[410] I thank counsel for the courteous and effective way they conducted this

lengthy trial, all during the challenging time of COVID. Given the huge volume of

documents and the remote appearances of the witnesses and some counsel, this

case could not have been conducted other than with the use of an electronic

document management system: no hard copies were necessary. Counsel are to be

commended for their collaboration in setting this up.

“E. M. Myers J.”