In Toukaev v ICBC, the British Columbia Court of Appeal dismissed the appeal of a man who had witnessed his spouse in the hospital after a serious accident.

 

[21]           Chief Justice McEachern went on to state that while the Court was in part bound by Rhodes, he did not consider Rhodes as standing for the proposition that for a claim for nervous shock to be found, psychological injury must have occurred at the scene of the accident.  He stated that in certain cases it could be extended to the events at the hospital immediately after the accident.  At paras. 75 – 77, the Chief Justice concluded:

 

[75]      The law in this province, as formulated by Rhodes, requires that the plaintiffs, in order to succeed, must experience something more than the surprise and other emotional responses that naturally follow from learning of the death of a friend or relative. Instead, there must be something more that separates actionable responses from the understandable grief, sorrow and loss that ordinarily follow the receipt of such information. In Rhodes,  Wood JJ.A. described the requisite experience as alarming and startling (and therefore sudden and unexpected), horrifying, shocking and frightening, and Southin J.A. referred to a “fright, terror or horror”.

 

[76]      The nature of the experience by which an injury is alleged to have been suffered is one of the “controlling mechanisms” that serve to limit the reach of liability for nervous shock in this province. It seems to me that the principle shock suffered by the plaintiffs was in learning of Yasmin’s death; after that, grief, sorrow and regret would follow immediately, and would continue for an unlimited period. The experience of viewing the body, however, cannot be equated to the shock and horror that would be experienced, for example, at the scene of an accident witnessed by the plaintiffs because the features of surprise, shock, horror and even fear are absent in a hospital setting. As already mentioned, it might have been different if Yasmin’s body had been horribly mutilated or if she had died in the presence of her family. That was the case in Cox v. Fleming (1993), 13 C.C.L.T. (2d) 305 (B.C.S.C.) where the plaintiff succeeded. That would be a different case and one that I need not attempt to decide.

 

[77]      While I consider myself free to agree with many eminent judges who have extended the immediate aftermath of a casualty to the hospital in circumstances such as these, I am constrained by authorities binding upon me to decide that the experience the plaintiffs endured, grievous as it must have been for them, was not one that falls within the requirements of the law relating to the circumstances in which persons who are not physically injured are entitled to damages for nervous shock.

 

[22]           Here, Mr. Toukaev learned of Ms. Toukaeva’s injuries before he saw her, and while her condition must have been upsetting to him when he saw her, it could not be said to have been unexpected.  As was the case for Yasmin Devji’s family, the Chambers Judge here concluded that a claim by Mr. Toukaev would not fall within the requirements of the law relating to the circumstances in which persons who are not physically injured are entitled to damages for nervous shock ………

 

In Ulmer v. Weidmann, the Plaintiff’s husband was killed as a motorcyclist in a collision with a motor vehicle. The Plaintiff’s husband had been traveling in the curb lane on his motorcycle prior to entering an intersection, however collided with a left turning vehicle, causing his death. The Plaintiff, in addition to making claims under the Family Compensation Act, made an ICBC claim for nervous shock and other emotional and psychological injuries for witnessing the immediate aftermath of the collision,  for seeing her husband laying on the road bleeding and dying, and for seeing her husband in the hospital after he passed away. The Court awarded the Plaintiff $10,000.00 for approximately six months of post-traumatic stress disorder (PTSD).

 

[99]           From the reasoning in these cases and other cases cited therein the following elements of the cause of action for nervous shock have been established:

 

(a)      the defendant must take reasonable care not to injure those persons who are so closely and directly affected by his/her actions that he/she ought reasonably to have them in contemplation as being so affected;

(b)      proximity factors inform the foreseeability analysis for claims of psychiatric injury where there is no physical injury;

(c)        the relevant proximity factors are the relational proximity (the closeness of the relationship between the claimant and the victim of the defendant’s conduct), locational proximity (being at the scene of a shocking event and observing it or observing its immediate aftermath), and temporal proximity (the relation between the time of the event and the onset of the psychiatric illness);

(d)      the claim must be for actual psychiatric injury caused by the actionable conduct of the defendant;

(e)      it must be concluded as a matter of law that a reasonable person should foresee that his/her conduct is such that for it could create a risk of direct psychiatric injury to a person of normal fortitude and thereby give rise to a duty of care to avoid such a result;

(f)         a claimant must prove not just psychological disturbance or upset as a result of the defendant’s negligence but also that his/her psychological disturbance rises to the level of a recognizable psychiatric illness. Mere grief or sorrow caused by a person’s death is not sufficient to support any compensation. The law does not recognize upset, discord, anxiety, agitation or other mental states that fall short of a recognizable psychiatric illness.

 

[216]      It is my conclusion from considering all the evidence of the medical experts and the lay witnesses that the plaintiff did suffer from PTSD in the early period after her husband’s death but this was significantly mingled with her grief and bereavement which is understandable after 38 years of marriage, and was completely overtaken and replaced by that continuing grief and bereavement in the long-term.

In Deros v McCauley, the Plaintiff witnessed his friend being struck by another vehicle, however his friend was not seriously injured. The Plaintiff’s claim for nervous shock was dismissed.

 

[17]         In order to show that the damage suffered is not too remote to be viewed as legally caused by Mr. McCauley’s negligence, Mr. Deros must show that it was foreseeable that a person of ordinary fortitude would suffer a mental injury from witnessing the accident. He has failed to do so…

 

[18]           In fact, Mr. Deros takes the position that he is a “classic thin skull” and that because of his pre-existing problems, both physical and psychological, he was more susceptible to suffering a mental injury.

 

[19]           Mr. Deros asserts the evidence supports a finding that he is particularly vulnerable to psychological injury because of his pre-existing problems. He says that prior to the accident he suffered from chronic pain in his back and shoulder, edema and sleep apnea. As well, he was obese and taking heavy dosages of pain killers. Mr. Deros says he suffered from depression and panic attacks prior to the accident. However, he says he was not suffering from depression at the time of the accident, and the frequency of his panic attacks had diminished.

 

[20]           Mr. Deros agrees he was suffering from a number of stressors at the time of the accident. He says several stressors made him more prone to suffer from PTSD, including the deaths of his daughter and father; his weight gain after his daughter’s death; the fact he was disabled from many forms of employment due to his weight gain; and his unemployment. He says the evidence from Dr. Ancill, Dr. Passey and Dr. Riar supports this finding.

 

[21]           Mr. Deros argues, in effect, that the thin skull rule should be taken into consideration in determining whether his damages were foreseeable. He says in this case liability has already been determined and, therefore, the thin skull rule applies. However, even if the plaintiff proves the defendant owed him a duty and breached the duty, the plaintiff must establish it was reasonably foreseeable that a person of ordinary fortitude would suffer a serious injury as a result of witnessing the accident: Mustapha at para. 18. It is only after establishing that it is reasonably foreseeable that a mental injury would occur in a person of ordinary fortitude that the circumstances of the particular plaintiff are considered.

 

[23]         The cases, to which I was referred, where damages for nervous shock have been awarded to witnesses of accidents who were not physically involved in the accidents, involve accidents or events which are more shocking than the accident in this case. All the cases involved accidents in which someone has died or been seriously injured

 

[25]         In this case, Mr. Deros witnessed a collision that involved no serious injuries. Even if I accept Mr. Deros’ evidence at trial that he initially thought a rod had skewered Mr. Lance, he knew within minutes this did not occur and Mr. Lance had not suffered serious injury….

 

[29]         There is no evidence that a person of ordinary fortitude would have suffered nervous shock injury or mental illness as a result of witnessing this accident. The experts testified about Mr. Deros’ particular reaction to the accident, but not that a person of ordinary fortitude would have suffered mental injury.